46 S.C. 55 | S.C. | 1896
Lead Opinion
The opinion of the court was delivered by
The defendants having been convicted and duly sentenced for assault and battery with intent to kill, have appealed to this court. The grounds of appeal will be reported.
The first question, which is raised by the first and second grounds of appeal, may be thus stated: Is it legal, against the objection of defendants interposed at the time, to complete a jury for their trial from the names of juror's on a special venire, when the first four of such jurors are presented in advance of the other jurors constituting the special venire, and before such other names are placed in the covered box, and also, when the prisoners have exhausted their right of challenge, two additional juror’s names are placed in the covered box and drawn, as required by law, to complete the panel?
It seems that of the thirty-six persons who composed the petit juries, twelve were in the jury room engaged in making up their verdict in another case, and when the prisoners were being tried, they exhausted the remaining twenty-four names by their challenges, still leaving the jury for their trial incomplete; that thereupon the Circuit Judge ordered a special venire of twelve to be made up in accordance with our statutes. Of this special venire four jurors appeared in court, and the presiding judge ordered their names to be placed in the covered box to be drawn and presented to the prisoners. In challenging some of the four jurors, the jury still lacked one of completion, but the defendants had exhausted their challenges. Two others of the special venire came into court, and the Circuit Judge ordered their
When the defence closed their testimony, the State placed Trial Justice Croswell on the stand, and the testimony of this witness tended to establish that, although the witness, Shelton Kelley, was drinking when he made the remark he did to Mr. Croswell, said Shelton Kelley knew what he was doing and saying, and, also, that he was in such a condition as to know and remember all he did or said; that he did use the very words charged. And to this last testimony the defendants objected as irrelevant, and, also, that Shelton Kelley had not denied the use by him of the language imputed to him. The .defendants set up, in their last ground of appeal, the relevancy of the testimony, and, also, that Shelton Kelley, by not having denied the use of the language, made the testimony of the State incompetent. We regard this ground of appeal as untenable, for, in our view, the testimony is both relevant and competent, and these are our
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.
Dissenting Opinion
dissenting. While I agree with Mr. Justice Pope in the conclusions which he has reached on all the other points, I cannot agree with him in the view which he takes of the fourth ground of appeal. In 1 Greenlf. on Ev., sec. 449, it is said to be: “A well settled rule, that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony,” and this doctrine is quoted with approval in the recent case of The State v. Wyse, 33 S. C., at page 592. Now in the case under consideration the issue to be tried was whether the defendants were guilty of the dastardly attempt to assassinate Jenkins, and the question whether Shelton Kelley, who was examined as a witness for the defence, had used the very improper and reprehensible language to the trial justice which was imputed to him, was clearly collateral to the issue on trial; and, therefore, under the rule above stated,' it was not competent for the solicitor to offer testimony to contradict his denial that he had used such language, even though the object of such testimony was to discredit the witness, Shelton Kelley. The case of The State v. Sullivan, cited by Mr. Justice Pope, does not touch the point here considered; indeed, it — impliedly, at least — recognizes the correctness of my position; for Mr. Justice Gary, in delivering the opinion of the court in the Sullivan case, was careful to say that the testimony of Finley, which it was proposed to contradict, was clearly relevant to the issue on trial, as it undoubtedly was;. and, what is more, he makes a quotation
Concurrence Opinion
concurring. In my opinion, the question raised by the fourth exception must be decided upon a principle different from that stated by Mr. Justice Pope in the leading opinion herein or by Mr. Chief Justice Mclver in his dissenting opinion in the above stated case. Shelton H. Kelley was examined as a witness for the defence, and upon his examination in chief testified both as to the language which he used in speaking to the trial justice about the arrest of his brother, and also as to his (Shelton H. Kelley’s) condition at that time, caused by strong drink. The State then cross-examined him as to those matters in regard to which he had testified upon his examination in chief. The testimony of the trial justice, introduced for the purpose of disproving the statements made by Shelton H. Kelley, was objected to on the ground that it was irrelevant, and that Kelley did not deny it. If the defence had not brought out, upon the examination in chief the testimony of Shelton H. Kelley as to the language which he used towards the trial justice, and his condition at that time from intoxicants, then the State would not have had the right, upon cross-examination, to lay the foundation for contradicting him by evidence of contrary statements made at other times, unless such statements were material. State v. Sullivan, 43 S. C., 205. That principle, however, does not apply to this case, as the facts are different. The rule governing this case is thus expressed by Chief Justice Simpson, in behalf of the court, in State v. Sims, 16 S. C., 494: “It is a rule of evidence, that before a witness can be impeaehed by evidence that he has made statements out of court different from those made on the stand, the foundation must be laid by stating to him time, place, and person. We do not see