153 S.E. 480 | S.C. | 1930
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *511 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *512 May 31, 1930. The opinion of the Court was delivered by The defendants, Robert Jernigan and D.B. Marlowe, were tried and convicted at the March, 1928, term of Court of General Sessions for Horry County, before his Honor, Judge C.C. Featherstone, and a jury, under an indictment charging them with assault and battery with intent to kill. From the sentence and judgment of the Court the defendants have appealed to this Court, imputing error to the trial Judge in the particulars set forth under thirty-four exceptions, many of which contain a number of subdivisions.
The difficulty out of which the indictment arose took place in Horry County, about 9 o'clock at night, on or about November 12, 1927, in the road, near the home of the defendant Marlowe. The testimony on the part of the State as given by Duck Causey, the prosecuting witness, tends to *513 show that on the night of the date named, November 12, 1927, he was traveling in his automobile, going to his home, and soon after passing the home of the defendant Marlowe, on said road, about fifteen yards beyond the house, as he slowed up the speed of his automobile for the purpose of descending a rough hill, he was attacked by the defendants, who jumped upon the running board of his car, pulled the switch-key out, which caused the car to stop, and proceeded to cut him with knives, each of the defendants engaging in the cutting, and inflicted upon him, the prosecuting witness, very severe wounds. According to the version of the affair by Duck Causey, the prosecuting witness, he was wholly without fault and was attacked without warning and not given an opportunity to defend himself. It further appears from the statement of Causey that one Sam Jernigan came to the car and called to the defendant Robert Jernigan not to cut him (Causey) any more; that he had cut him enough. Also, that after the defendants had ceased cutting him (Causey) they ordered him to get out of his car, saying they were going to take it, and he got out, walked to the home of Sylvester Causey, who helped him to get a physician. The prosecuting witness also testified that the defendants had a shot gun at the time they made the attack upon him.
According to the testimony of the defendant Marlowe, on the night in question, he was at home with his family; that his family consisted of his wife and several children, some of his daughters being about grown, and they, together with some other young folks who had assembled there, were having some music; that the prosecuting witness, Duck Causey, drove up in front of his house in an automobile and stopped; that at the time this defendant was in the room with his wife, and because of the noise outside, at the request of his wife, went out to investigate, and by the use of his searchlight recognized Duck Causey in his automobile, who asked this defendant if the Jernigan boys were there, having reference to the defendant Robert Jernigan and his *514 brother, Sam; that about that time the defendant Robert Jernigan walked out and Causey knocked him down by striking him a heavy blow upon the head with an automobile jack; that Causey ran off, leaving his car behind; that he (this defendant Marlowe) did not see anyone cut Causey and did not know Causey had been cut.
The defendant Jernigan testified to the same effect as the defendant Marlowe, except he claimed to have done all the cutting to Causey, and that Causey was mad with the Jernigan boys on account of trouble they had had with Causey's brother. It was also the contention of the defendants that Causey was drinking.
The transcript contains a mass of testimony adduced at the trial, but the above statement is sufficient to give a clear conception of the contention of the parties.
We will consider the exceptions in their order:
"Q. Was any drinking up there? A. No, sir; not as I seed.
"Q. Did you smell any liquor around there? A. No, sir.
"Mr. Ford: I object, because the question is leading, and second, the defendant is not being tried for violation of the prohibition law.
"The Court: It is leading, but otherwise it is all right.
"Q. Did you or not see any whiskey there? A. No, sir; I didn't see a drop.
"Q. Did you or not smell any liquor there? A. No, sir. — "the error being that the Court permitted the asking of questions which were leading and to ask by indirection questions *515 charging the defendants with another crime under the law."
When the testimony quoted in this exception is considered in connection with the other testimony, it will be seen that the purpose of the same was to ascertain if the contention of the defendants was true; that is, the contention that at the time of the difficulty Causey, the prosecuting witness, had whisky in his automobile and was under the influence of whisky. Even if the purpose of the testimony had been to ascertain if the defendants at the time of the difficulty were under the influence of whisky, it would have been competent. We do not think the questions propounded by the Solicitor could be construed as charging the defendants with unlawfully handling contraband whisky, as appellants seem to think. In our opinion the trial Judge committed no error in overruling the objection to the testimony.
"Q. Do you know whether your friends, the defendants, were drunk? A. No, they were not drunk.
"Q. Were they drinking? A. I don't know.
"Q. Had they been drinking some whisky — yes or no?
"A. They might have been drinking some.
"Q. Tell me the truth; do you know. A. They had been drinking some.
— "the error being that the questions were leading, and charged the defendants with the commission of another violation of law not charged in the indictment of this case."
There was no error in allowing this testimony. It was competent for the purpose of showing the frame of mind and general condition of the defendants at the time of the *516 difficulty in question. It was not objectionable on the ground that the questions were leading, and the position of appellants that the defendants were being charged with a violation of law other than that charged in the indictment is not well taken.
"Do you know of him ever having been in anything of this kind?"
Counsel in asking this question had reference to Causey, the prosecuting witness. It was in order to attack the general reputation of Causey for peace and good order, but, as the trial Judge ruled, it was not proper under the rule to go into specific acts of violence, unless the same were committed along about the time in question.
"Q. Do you know the defendants pretty well? A. Yes, I think so."
We fail to see in what way the defendants were prejudiced by this question. Furthermore, no objection to the question was interposed.
"Is it good — the reputation for peace?"
And by interrupting as follows: *518
"The Court: Is it good or bad? Answer the question.
"Witness: Different people talks different ways, and it is a hard question for me to answer. I am fair to tell the right thing, if I know it. I have eat many a time at a table when I wasn't hungry and my appetite hasn't left me."
— "the error being that the question on cross examination was competent, and by interrupting, the Court deprived the defendant on cross examination of an answer to a material question."
There is no merit in this exception.
"Q. Did you recognize anybody's voice? A. Yes, sir; after I went to the door. I got up and took my light and went to the door. My wife asked me to.
"The Court: Never mind telling what your wife said."
Appellants contend: "The defendant (Marlowe) had detailed no conversation between himself and his wife, and further, the sudden outburst or statement made at the time of the assault was competent evidence as a part of the resgestae." We are unable to agree with the contention of the appellants, but granting that their position is correct, the appellants were in no way prejudiced by what took place.
"`Q. What, if anything, did they find in the car when they got there? A. They found a "pre-di" bottle (pre-digested beef bottle), full of whisky. *519
"`The Court: Did you see it? A. I saw it' — the error being that by the interruption on the part of the Court, intimated to the jury that the defendant was not telling the truth and had the effect of making ridiculous the testimony of the defendant."
It will be observed that the witness in answering the question propounded by counsel said: "They found a `pre-di' bottle full of whisky." The witness did not say he found it. Therefore, a question very probably arose in his Honor's mind as to whether or not the witness was giving hearsay testimony, and he asked the witness if he saw it, referring to the bottle containing whisky. His Honor, as presiding Judge, anxious to see that justice was done in the case, had a right to ask the question.
This exception is too general. It does not point out any particular error, and will therefore not be considered.
"Q. What are you laughing about? He was in the road. It took about two minutes to get you to admit he was in the ruts in the road. You saw this boy Duck run back with something you think was a jack, and cracked that boy where? A. The best I could see he hit him back here somewhere (indicating on the head)." *520
It is the contention of the appellants that the Solicitor was permitted to ridicule the defendant (Marlowe) and thereby discredit his testimony. So far as the record discloses the appellants raised no objection at the trial to the conduct of the Solicitor, of which they now complain, and for that reason alone the exception should be overruled. But waiving such objection, we cannot say that the question was improper, and we are satisfied that the appellants were not prejudiced thereby.
This exception is too general, and will therefore not be considered.
"`Q. Didn't this man Jernigan, the defendant in this case, tell you that Marlowe planned the cutting, the assaulting of this man? A. No, sir.
"`Mr. Suggs: We object, unless Mr. Marlowe was present. He couldn't be bound by that.
"`The Court: Anything the defendant said is competent — "the error being that by the question the Solicitor was endeavoring to connect the defendant Marlowe with the offense by a statement made by Jernigan, which was hearsay and incompetent."
The questions asked this witness by the Solicitor were permitted by the trial Judge, for the reason that the witness was on cross examination, and were in our opinion allowable for that purpose. On cross examination of a witness it may often be necessary to allow questions to bring out the whole truth which would not be allowable on direct examination. In any event, the most that the defendant Marlowe could have asked for was to request the trial Judge to instruct the jury that this testimony could not be considered against him, and this the Judge did. Under any view of the case it was competent as against the defendant Jernigan. *522
"Q. I will ask you if from those that you saw both there and at the Marlowe home, those that communicated to you to get you to make the arrest, I will ask you to state whether or not there was any intimation that this defendant, Marlowe, did it."
Upon objection by the Solicitor, the trial Judge ruled as follows: "Yes, sir; that would be hearsay." We fully agree with the ruling of the trial Judge.
"Q. Was that blood at such a point that a person sitting under the steering wheel would have made the blood from the right arm?"
The Court sustained the objection of the Solicitor to the question on the ground that it was a matter of opinion. We think his Honor made a proper ruling on the question.
"Q. Not a soul, including your own sweet self, had an opportunity to put the liquor in the car, did they?"
Think the question shows a little sarcasm, which should have been left out, but the defendants were in no way prejudiced by the remark, and the exception must be overruled.
"Robert Jernigan didn't show the sign on his head to anybody."
In the first place, the Solicitor had a perfect right to state his version of the testimony. If he did not state it correctly the jury knew it, for the jury is presumed to remember and know the testimony as well as counsel in the case, and counsel does not gain anything for his client by misquoting the testimony. In the second place, the statement made by the Solicitor in open Court in explaining what he actually said is supported by the evidence in the case. The appellants have no ground for complaint on this line.
All of the exceptions are overruled, and the judgment affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS JUSTICES COTHRAN and BLEASE concur.
MR. JUSTICE STABLER concurs in result.