*1 VO tо to Brooks, In State v. 144, 518, 79 S. C. 60 S. E. 17 A., S., 483, L. R. N. evidence of previous and ill quarrels between the feeling parties, out of a arising controversy child, of a regarding months custody to eight prior held Holmes, And in slaying State v. 171 admissible. 440, 443, S. C. S. E. this Court stated: “The made in specific objection of the argument ap- that it was to pellant error admit the Evans, testimony as to the on the previous attempt of the part to appellant deceased, on the poison that it was error ground for the to endeavor to show the commission prosecution of another and distinct crime cannot be by appellant, sustained. If deceased, appellant as testified attempted poison Evans, act him was proof clearly competent malice, as evidence of the as known to go law, deceased, toward the and of his desire appellant to take her life.”
We are of the that the evidence was opinion ad- properly mitted difficultiesbetween showing previous appellant and wife, but that the details thereof were not admissible. reasons,
For the we are of the foregoing opinion and order of the Court should be reversed and judgment trial, case remanded for a new and it is so ordered. Re- versed remanded. J.,C. and Oxner J., concur.
Stukes, Legge, J Moss, J., disqualified. STATE, Respondent, v. BEN BRYANT, MOUZON and JOHN JR., Defendants, of Appellant whom Ben Mouzon is
(99 (2d) 672) E. S. *3 Atkinson and Arthur H. Messrs. Edward V. Wilder, of Sumter, Appellant, for Sumter, McLeod, Solicitor,
Messrs. R. Kirk and John Dinkins, G. of Manning, respondent.
August 1957.
Oxner, Justice. 2, 1956, and Between 7:00 8:00 P. M. Saturday, June Coker, Mrs. Allen struck and Margaret pedestrian, killed a 1955 Chevrolet Ben Mouzon automobile. both were Bryant, Jr., in front Negroes, riding John seat, but there is as to one Both dispute which was driving. murder with Ben Mouzon was convicted of indicted. a life sentence. to mercy given
recommendation John was convicted of after fаct accessory Bryant, Jr., five to for a term of sentenced imprisonment murder and Ben Mouzon has appealed. years. Only contends that is insufficient the evidence (1) Appellant verdict; in there error (2) refusing support venue; that an confes- for a alleged a motion change (3) admitted; him was Court (4) sion improperly co-defendant, in allowing testimony erred John him; to be considered Court Jr., (5) Bryant, against on the last to separate overnight erred permitting trial; were certain erroneous that there of the (6) day in the order will be considered These instructions. questions stated. Alcolu,
The oсcurred in the homicide village Alcolu is surface The County. highway running through feet wide. approximately treated. The traveled portion the shoulders were also surface In front of the business places accident, the road was At the point straight treated. the vision of a motorist for obstruct and there was nothing testi- or more either direction. The a distance of 500 feet effect: following of two mony eyewitnesses deceased, Alcolu, who lived cross proceeded an of about 45 When about half- angle degrees. highway she noticed the Chevrolet car across way apрarently ap- These estimated its at 70 to speed witnesses proaching. *4 ran across the remainder an hour. The deceased-then miles the as she just the and was struck Chevrolet of highway the off the traveled of and onto highway had portion gotten effort on the the no of part the shoulder. They observed the the her. After driver impact avoid striking driver to control, his brakes and slowed down lost applied almost looked back but 20 miles an hour. He then never to about of these witnesses that the acci- It was the opinion stopped. M. not dent around 7:00 P. said it was dark They happened the tо use his At time a motorist lights. enough require The no other on this highway. the accident there was traffic miles limit Alcolu is 35 an hour. speed The sheriff and a went patrolman immediately highway it to the scene of the accident. occurred They thought around 7:45 P. M. The of the deceased was found body 71 feet the These about two impact. beyond point officers road, the ex- saw fresh “brake” marks on the side of right feet of the acci- approximately point tending up brakes It was their that the driver dent. opinion applied for this distance before the deceased. striking
An hour or other officers twо after accident found car abandoned on a Sumter County Chevrolet highway near the of Mouzon and The front homes Bryant. right Shortly fender was broken. “crumpled” right headlight both their thereafter Mouzon and were arrested at Bryant P. homes. About M. the Sheriff 9:30 respective men to Both took these two County Manning. ap- jail intoxicants, to be the influence of Mouzon more under peared sheriff, In each claimed that so than Bryant. talking the car at the time of accident. On the other was driving the sheriff the next day, Sunday, placed the afternoon of an hour in a cell and left them about these men togеther out, taken Mouzon said that he were and a half. When warned him that he sheriff “take the blame.” would do he was driving. According not so unless should when sheriff, driving stated that he Mouzon then about miles an killed; that he was traveling deceased he was frightened. Through- because hour and did not stop he was the denied that driver Bryant out interrogation that he but admitted took over the accident occurred when a mile and a about reached point when they the wheel the scene. half of Mouzon and Bryant. the testimony now turn to
We that the Chevrolet owned They agreement it to him the day had loaned brother who Mouzon’s afternoon, accident; part that during early then in and that the two drove Mouzon Bryant; picked up *5 around Sumter, after which went to they and Manning called at numerous places; that each drove at various times during afternoon. They however, disagreed, as to the extent of their Mouzon said he drinking. became highly intoxicated while Bryant contended that consumed they only a small amount of beer and whiskey.
Mouzon, iswho about 20 years testified age, that at around 7:30 P. M. he went to in the sleep car with Bryant that he driving; knew nothing accident but does re- member awakened being aby after which jolt, he went back to that a short sleep; home, distance from his Bryant awakened him and said that the car had and that stopped; with the assistance of he walked to Bryant, his home where he was thereafter shortly arrested and taken to the jail, with He along Bryant. further testified that when the sheriff questioned by and the next night morning, each denied driver; that on being afternoon Sunday sheriff both of them placed in a cell and told together them “to make minds” your as to who was up driving; Bryant then sought induce him to assume the responsibility, that he had no stating driver’s license and was already trouble for one and that the insurance killing person would be no if he good and that about (Bryant) driving; this sheriff, time the who had overheard the apparently conver- sation, walked to the cell and told up if he was Bryant trouble, “don’t this little in trouble” try get boy told him that he did not have to take the (Mouzon) blame if he sheriff, was not the He driver. said he then told the “I will just take the blame.”
Several witnesses for Mouzon corroborated his testimony that he was drunk both before leaving Manning when One placed jail. witness further testified that ad- Bryant mitted to him at the that he jail the car. driving
Bryant, old, who years gave version following the occurrence:
“Well when we was going through Mаnning city limits, he (Mouzon) fast. As driving soon as we out got *6 driving, he at, start swamp, this big bridges these where Ben, out, going you I look like, and know, say wobbly you we there, when and bridges of these of one the side to hit railroad, across the 301 goes highway where to the end got out, to get if I want me asked dirt and on the off he pull on it light he make and say mean that? do you I said and know, after was, I well, you maybe I thought I said yourself. reckless, that so driving about to him I something, spoke say but when driving, on his down heed and slow he take would at a high took off he the door close and the car back I got curve, this on there up And so we got of again. rate speed tele- these dirt and the over He went to Alcolu. going telegram post, of hit one these to I say you going post, gram no more I didn’t wheel, say and the heme got tell and he too he had a Alcolu, speed I see and inup almost we until got down, and when to slow him there, I told and fast going know, I next road, thing the side walking this lady Ben, there I say car and of the front inwas lady this white her, and when hit to car, going you front of is a lady to you going what head, I say, and my I duck lady he hit I yes, say lady? I hit the he say, and stop, to do, going you home, and I going am sorry, amI he say And her.! hit you home.” me, going he was he told words is the last that Mouzon stаted that he testimony of his other portions In did an hour 80 miles or 70of speed at a traveling ad- He the deceased. striking before brakes not apply scene half from mile about that mitted wheel. over he took they stopped accident on Sunday the jail that testified Bryant witness A his mother admitted accident, Mouzon after afternoon driving. who was one he was that testimony review of the the foregoing seen from It will be men was which of these as to conflict a sharp there that in the verdict Implicit the accident. time at the driving It be reason- may was Mouzon. it that finding is a the jury intoxi- highly while testimony inferred аbly 35 mile hour in a an or 80 miles cated, driving he was zone; that he speed ignored repeated requests Bryant slow down and drive he carefully; made no effort to accident; avoid and that hit he had knowing deceased, he failed While it is true that the officers stop. said there were marks indicating application brakes before the other there is point war- impact, testimony a different conclusion. ranting
We think the evidence was sufficient to sustain a verdict murder. The conduct of the driver was such as to human life. it be imperil Although may fairly assumed was no another, there actual intent to kill or injurе there is evidence of such recklessness and wantonness toas *7 indicate a of mind and depravity life, of human disregard from which a could infer malice.
It held in v. 371, State Heyward, 197 S. C. 15 669, 671, S. E. as an malice essential (2d) in- of murder does not gredient necessarily ill-will import toward the individual “but a rather injured, signifies general others, recklessess of the lives and malignant of or safety a condition of the mind which shows heart a of regardless social and bent mischief.” It was duty fatally held State 439, 624, 627, 186 C. S. E. Long, v. S. 195 the driving an on a of automobile a public highway by while person intoxicated is not malum but malum in only prohibitum, se. “It It was there stated: is and gross furthеr culpable negli- for a to to drunken gence person attempt guide operate a an automobile one so upon public highway, doing, death, another, injuries causing be occasioning may of murder or as facts manslaughter, may de- guilty termine.” facts in a motor vehicle accident will rarely sustain murder, of since element of
a conviction malice usually no decision this has While Court been called to missing. a of murder our attention verdict out involving growing automobile, an are there numerous cases operation other from such a verdict. State jurisdictions v. upholding Trott, 674, 627, 1114; C. 42 190 N. 130 S. E. A. L. R.
663 Statе, 218, Cockrell v. 135 Tex. Cr. 117 R. S. W. (2d) 1105; State, 1, 607, Berness v. Ala. 38 83 So. App. (2d) 641, State, affirmed 613; 263 Ala. 188 So. Owen v. (2d) 459, 515; State, Term. 221 S. W. v. 210 Ga. Wells (2d) 422, Automobiles, E. also Jur., S. 153. See 5 Am. (2d) Section 792. Trott,
In State v. supra, N. C. E.S. [190 629] which is one cases on the the Court subject, leading said: “Murder in the second or murder at common degree, law, is the unlawful of a human with malice killing being Malice does not mean an actual aforethought. necessarily intent to take human It life. be inferential or may implied, instead of as an when act which positive, imports danger another is so or recklessly done as to manifest wantonly of mind and depravity of human life.” There was disregard further with quotеd approval Huddy following: “The act of motorist fall a within the cases of murder in may mind, such a manner as to a one depraved evince as where car, becomes intoxicated while and then voluntarily driving drives on streets of a rate of heedless city high speed, or of his acts.” pedestrians
In case, our discussion of this it concluding phase amiss not be the trial might view of the give Judge’s *8 trial, verdict. In a for a he motion new said: “I think refusing the facts are sufficient to the abundantly justify verdict of murder. As matter the is in a of fact verdict accordance evidence, with the consideration the and the рroper jury stated, has however, done a fine He further very job.” that if the in had a verdict the jury death brought carrying pen- it he not let stand. a alty, would have While sentence life may seem severe where there is imprisonment no actual intent to kill or a such sentence is under injure, mandatory the statute where the returns a verdict of murder with recommendation to mercy.
We next consider whether the Court erred in a refusing motion defendants for a of venue. this change Ordinarily would been the first con- have to but we question- pass upon
eluded in the instant case that be better understood might it after a review the testimony. case
When the called for trial at the term June, of Court of Clarendon which about two County, convened accident, weeks after counsel for the two defendants moved for a fair a of venue that change upon ground not had County. trial could be in Clarendon impartial motion heard affidavits and the certain testimony upon of the sheriff. Two of the for the defendants stated attorneys in had with numerous their affidavits that discussions in were convinced that citizens Clarendon County, they trial; a fair and that impartial their clients could not obtain a these had so informed them but declined number of citizens did not want to be of to make affidavits either because they to defendants for fear of the effect their upon aid or any business; those that some of interviewed social standing should be electro- that the defendants opinions expressed an influential and ; deceased was a member of cuted that the there was County; connected Clarendon family widely because of county throughout racial prejudice strong schools; and to public litigation relating segregation defendants were members of for the attorneys since all the Bar, to secure the servicеs of a endeavored Sumter in the to assist them trial of Bar Manning member of the so, their clients were unable to do although but were caes These attorneys expressed fee. a reasonable willing pay local counsel to obtain inability their opinion of deceased and “the of the family due prominence the defendants.” against and prejudice tension a an affidavit of Sumter introduced Negro There was also of counsel for the defendants effect that at request from numerous affidavits Negroes he endeavored procure told him that the defendants who had County but these trial impartial Negroes not fair could obtain for fear of declined to affidavits reprisal. give *9 the sheriff was the affidavits After introducing foregoing He admitted of defendants’ attorneys. sworn at the request the defendants removing state for safe penitentiary 4th. He said this done matter keeping as a of June after precaution certain information a resi- receiving dent Alcolu but denied threatened any knowledge He violence. further testified that physical there “no talk more than in a case of kind usual” this and expressed that defendants could obtain a fair and im- opinion trial in рartial County. Clarendon
The State introduced eleven affidavits citizens by Each affiant said he felt County. “sure” the de- fendants could a obtain fair and trial. The solicitor impartial stated that he obtain many could more affidavits that effect but it advisable to confine them to a thought few from each section the county.
At the conclusion Eatmon, of the hearing, Judge the pre- refused the Judge, motion for a siding of venue change but stated that since the been held in had hearing presence he would jury panel, continue the case until the next term of court.
The case was again called for trial at the September, term over which Griffith Judge presided. The motion for of venue was then renewed change and heard Judge Grif- by fith at his Chambers order not to of de- prejudice rights fendants that by be said. There anything might were intro- duced evidence used affidavits term of June court, with certain new together affidavits the same per- sons effect the sentiment the defendants against had not The new matter out was changed. only brought statement defendants’ counsel to the effect false rumor had been circulated throughout county they had their of, been clients were members by, employed Associаtion for the National Advancement of Colored which said would their case. seriously prejudice People, Griffith motion. His reasons overruled the Judge doing so not set out in the record. are solicitor, motion of the all the
Upon jurors placed on their voir dire and the usual questions propounded.
666 examination but it
record does not contain voir dire that was no from defendants’ does there “challenge appear so- stated in counsel.” It was further oral argument by their counsel the defense not exhaust licitor that for did challenges. (cid:127)
Of considerable observation significance follоwing and made trial in the absence of the ruling Judge near the conclusion of jury, testimony: “Gentlemen, at the commencement of this I asked trial counsel about and the defense jury keeping together, that counsel a desire be At kept expressed they together. time, that in of motions of view the especially change continuance, venue I be shown expected more interest to in the I trial than has been shown in the courtroom today. white have observed there have been on more than forty time, in the them I think courtroom at of people any part witnesses, I a half cоlored don’t were about dozen people. that would see the interest that has been manifested here in over unless me this justify jury night keeping together can advance.” there is some reason special you It is well that a motion for venue settled change on the that an cannot be ob- ground impartial tained is addressed to the discretion the Court course, which, a and not an discre- arbitrary, “is judicial, Jackson, 273, tion.” v. 110 S. C. S. E. 416. While State case in instant the trial would have been fully Judge motion, in we cannot his failure to say justified granting so abuse do constituted a clear of discretion.
The motion was based on affidavits of defendants’ largely counsel to effect that after thorough they investigation, not were that their clients could obtain a fair and convinced held in lawyers trial. These are and are ability impartial one would their sincerity esteem. No question highest zeal to of their every but in comméndable protect right aver clients, could their conclusion. They be mistaken that a numerous citizens told them affidavits that their could be had in fair trial not and impartial How- that effect. make affidavits but refused County these to subpoena any effort no ever, the record discloses Blease of Mr. Chief language following people. Justice 399, 221, 167 S. E. Rasor, 168 S. C. v. State stated that counsel here: “While 1237, is applicable L. R. A. information, refused had him citizens,’ had who given ‘the obtained, there the information affidavits, verifying make unnamed, should citizens, who these was no request *11 to the as to testify the court and required before be brought the to had The power court had furnished. information the proper it for purpose citizens’ before ‘these summon been had doubt, given, if their names examination, and, no made, the court in open examination their for and a request it.” have granted would judge prеsiding trial can- that a fair affidavits in these It further stated is in existing racial prejudice of strong had because not be litigation to recent per- in the due part County, no Negro premise On this schools. to segregated taining where in case County any in trial Clarendon a fair could get race. Experience to White belonged victim the alleged Caro- other South county of that courts counties that conclusion. not justify lina does defense, we made the showing controverting As could the defendants sheriff that testimony have the citizens resid- eleven trial, affidavits fair obtain effect. In the same to county of the in various parts ing made near trial Judge of the statement addition, we have not more the effect to testimony the conclusion witnesses, were of whom some White people, than 40 think there did he not and that time at any in the courtroom continuing his case to justify in the interest was sufficient weight attach considerable We together. the jury keep of an contention negatives It strongly this statement. in Clarendon existed there ever If sentiment. public aroused case, it have sub- must in this interest County any great was on trial Judge trial September. sided prior to evaluate than we better positiоn in a much the scene and the circumstances. We have here not his conclusion only a fair trial could be had but also that of the resident Judge who doubtless was familiar local fully with conditions. Evi- the voir dire examination of the dently disclosed jurors no sentiment or for strong prejudice did appellant’s-counsel not same in the include record. As out in State pointed v. Thomas, 519, S. C. 18 E. S. such an exami- (2d) nation throws considerable ordinarily light question of whether an be obtained. impartial jury may
The feature of the motion which has disturbed us most one the statement of counsel that he had appellant’s beеn unsuccessful in securing lawyer Manning, county trial, to assist in seat of Clarendon County, although clients were a reasonable fee pay willing such serv- ices. He states on information and belief that this was due to “the of the family deceased and position the tension cause,” defendants in this prejudice against but does not disclose the source of such information or belief. the fact that
Although ordinarily a defendant is un- able to retain local counsel is “a *12 index of striking sentiment,” condition of public Gossett, State v. 117 76, 290, 294, S. 1299, C. 108 E. 16 A. L. S. R. we think it would be too far to hold that this necessitates in going case eVery of a mоtion to Much granting venue. change on the depends circumstances.
There are about only five at practitioners One Manning. with the associated solicitor in this case. We are not definitely advised four why declined an offer remaining It employment. have been for may reasons other than claim of appellant’s adverse sentiment. There public are several at Summerton in lawyers Clarendon County. There is no declined showing they in employment this case. All the now territory embraced in Clarendon County once a of Sumter or part District. It County is well known that Sumter in lawyers frequently practice County. miles 19 Manning only Sumter.
669 consideration, After careful we are not convinced to secure a lawyer assist inability Manning appellant’s case, cir- in the considered connection with all the when cumstances, a conclusion that the trial abused compels Judge discretion in the motion for a of venue. refusing change
A refusal of motion to the venue was change upheld cases of the defense was although showing following as if not than that in the equally strong stronger presented 348, Francis, 17, instant case: v. 152 E. State S. C. 149 S. Thomas, 519, 1133; R. v. 70 A. L. State 198 S. C. supra, E.S. 369. (2d) Davis, considered
We have State v. carefully S. C. 139, E. It must be conceded S. 140. that it has similar to those features the instant case many presented but we do not think the here was as as in showing strong there the Davis case. It that the homicide was fol- appeared excitement; intense that for there- lowed several by days after the defendant was hunted bands of armed men who by Governor, him with that the threatened death fear- sight; violence, ordered that defendant be held in the ful of State that the members of the de- Penitentiary safekeeping; to influence sentiment for de- ceased’s family working conviction; defendant and that was unable securе fendant’s counsel, fact, able to for such services. In pay local although that there had been a the State it was conceded strong the defendant. The only showing by sentiment against six affidavits citizens of Fairfield State consisted “in their to the effect judgment thought County obtain a fair and trial in impartial could that the defendant there no In the instant case county.” showing Fairfield violence, statement of the trial threatened physical little interest was manifested indicates that public Judge *13 trial, the State by the and there was a substantial showing a fair trial could be obtained. that in ad- third is whether the Court еrred
The question driv- the confession that he was by appellant mitting It is con- car at the time of the accident. the ing tended that the State failed to show that this confession was made. It is not contended that the freely voluntarily sheriff threatened or held out inducement to any appellant it that the record is silent as to what him but is argued in the hour and a half that was appellant transpired during co-defendant. think the of whether with his We jail question made the confession was was freely voluntarily properly that he and admits when submitted to jury. Appellant from the cell that the sheriff cautioned were removed Bryant the blame unless he was the driver. He said him not to take sheriff, “I take the blame.” he then told the will just is erred in re- The next whether Court question to instruct jury testimony fusing could not be considered It Bryant against appellant. the course of the trial the was is conceded that during jury statement or confession made out of court instructed that any not be considered one of the defendants could against does not extend to the testimony other. But this principle or an co-defendant accomplice. testimony court aby considered like other witness. any was to be of Bryant course, 95, Coolеr, S. E. 845. Of v. 112 S. C. State for the was jury. credibility testimony counsel appellant’s Error assigned inquiring of the testimony, the conclusion presence near there was any objection whether jury, home. It is to separate go argued permitted jury’s being The record does not sustain prejudicial. that this highly is based. The this exception which inquiry the facts upon in the but not made presence jury of was complained It was within the absence of jury. entirely during he would continue the trial as whether discretion of Judge 125, Stewart, 26 State v. S. C. the jury together. keep Bates, 468; E. 1075. E. State v. 87 S. C. 69 S. S. no There is showing appellant prejudiced It is not con- fact that the to disperse. permitted that there outside contact with member any tended was any of the jury.
There are several exceptions relating charge but the only of in portion complained brief appellant’s is the following: connection,
“I in that charge you that no con- alleged fession or admission on the of one defendant part can be con- sidered as evidence any whatever affording other against defendant; nor should such confession any alleged or ad- mission be considered as evidence in the any case as against it, the defendant if find that yоu it, he did making make unless the has satisfied State you beyond reasonable doubt made, same and was freely voluntarily without any inducements, threats or or of reward or hope In fear. other words, before an confession can be considered alleged by evidence, it must not as have been induced jury by fear, nor extorted but must be free and promises by volun- and then it must be tary every respect, believed by jury.”
It is contended that the words we have italicized consti- tuted an as to the of the evidence and opinion was a weight on the facts. While the used not be charge phraseology may а model for we do not think the clarity, charge reasonably to the construction advanced susceptible by Ob- appellant. the word “then” was used in sense of “besides” viously, or “in addition.” can find no We error. certainly prejudicial
It should be further added that at the conclusion of the was excused and charge jury counsel an given oppor- to make or tunity further None any exceptions requests. made by appellant. affirmed.
Judgment Moss, C. J., concur. J., Stukes, Taylor concur in JJ., result. Legge, Legge, (concurring-in result). Justice I limit result, concurrence my because, although otherwise in full accord with thе I am opinion, unable to agree there-was no error in that prejudicial portion we which to the transcript, wherein charge (according an that “before alleged instructed are jury bound) it must as evidence can be considered confession fear, but nor extorted by by promises not have been induced then it must respect, every free and voluntary must be *15 well The jury may added.) the jury.” (Italics be believed by if they understood, language, quoted have made they been freely had the confession find that should true. therein as statements made all of the must accept construction; so such certainly susceptible language law, for even statement construed, an erroneous it is been as having the confession may accept the jury though credibility, its sole made, judges are freely toto, or not at all. or in part, its statements believe may 23. But if the 306, 45 E. Miller, S. (2d) 211 C. v. S. State it was in the language quoted, did charge able trial judge error, which he his attention to call of counsel the duty timely No and there. corrected then would have undoubtedly made, ap- been having clarification or request objection it.of complain cannot now pellant J., Taylor, concurs. CLIFTON, JR., FINANCE Respondent, v. DARLINGTON
IVEY WINDHAM, Appellants and E. L. COMPANY (2d) 404) E.
(100 S.