State v. McPhail

Dec 20, 1920

10534

Reporters:: , ,
Before:: Gary

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

Thе defendant was indicted for the murder of PI. W. Walker, and the jury found him guilty of manslaughter, *339 whеreupon he appealed on numerous exceptions, which will be reported.

1 The question whether testimony is relevant must rest necessarily, in large measure, within the discretion of the presiding ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Judge, and his ruling is not the subject of appeal, unless there has been an erroneous exercise of his discretion. McCrary v. Railway, 83 S. C. 103, 65 S. E. 3, 18 Ann. Cas, 840.

2 It is incumbent on the appellant to satisfy this Court that there has bеen prejudicial error, but he has failed to do so; and we will proceed to state our reasons why none of the exceptions can be sustained. The exceptions will be considered in regular order.

3 First Exceрtion. — The testimony tended to show a threat on the part of defendant аgainst the deceased, and the circumstances out of which it arosе.

4 Second Exception. — Mrs. Walker, afterwards Mrs. Hayes, was not indicted for killing her husband, and was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍merely a witness; therefore, any unpleasantness between her and a third party was wholly immaterial.

Third Exception. — What has just been said disрoses of this exception.

5 Fourth Exception. — His Honor, the presiding Judge, did not rule that the defendant could not interrogate Mrs. Hayes as to threats, аnd her general attitude towards her husband, but merely exercised his discretion аs to the limit of such testimony, as will be seen by reference to the following: “Didn’t you draw a pistol on your husband not long before your husband was killed ? The Court: You must nаme some time. Mr. Carter: Q. Mrs Hayes, *340 within a few months before your ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍husband was killed? A. No, sir.”

Again: “Mr. Carter: Our position is that he has the right to offer any testimony that would tend to shоw that he is not the one that killed this man, and any testimony tending to show that anybody еlse might have had a bad feeling against him, or committed any wrong against him, is cоmpetent. The Court: You are trying to show that she killed her husband ? Mr. Carter: No, I would nоt say that. Mr. Carter: Q. Mrs. Hayes, didn’t you curse your husband for a ‘damned black-hearted son of a bitch,’ and tell him that you would kill him if he did not turn you loose, and you would kill him befоre 12 hours ? Mr. Miley: We object to that. The}»’ are not charging her with the killing; they want to go into something that has nothing to do with the killing. The Court: He is trying to get it in, on the ground that she threatened to kill him. Go ahead with it. * * * Q. Answer the question. A. No, sir; I did not say that.”

Again: “Mr. Carter: Mrs. Playes, I give you notice that I will put a witness on the stand to contradict you, in case you deny it. Did you, two or three weeks before your husband was killed, at the home on the porch, pull from your clothing a pistol and state in the presence of Mrs. Steadley that your husband had beaten you, and you put that pistol to his head and told him to- stop? A. No, sir; I never carried a pistol. Q. Didn’t you, about two weeks before he was killed, at the home of Mrs. Ben Donald, tell her that you had drawn a pistol on your husband, and told him you were not taking аnything more off him? A. No, sir. Q. Didn’t you, about two weeks before your husband’s death, at your hоme, have a shotgun pointed at your husband, and your husband had a pistol pointed at you, in the presence of old man William Stokes? A. No, sir.”

*341 6 Fifth Exceptiоn. — This exception is disposed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of by what has already been said.

7 Sixth Exception. — The testimony in this exception tended to prove a threat by the defendant against the deceased.

8 Seventh Exception. — The testimony in this еxception related to a collateral question; therefore, the answer of the witness was not subject to contradiction. State v. Sullivan, 43 S. C. 205, 21 S. E. 4.

Eighth Exception. — -The difficulty between Mrs. Hayes and a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍third party had no relevancy to the case under consideration.

Ninth Exception. — What has already been sаid disposes of this exception.

Tenth Exception. — What has already been said disposes of this exception.

Eleventh Exception. — What has already been said disposes of this exception.

Affirmed.

Mr. Justice Gage did not participate on account of sickness.