105 S.E. 697 | S.C. | 1921
January 31, 1921. The opinion of the Court was delivered by The defendant was tried at a special term of Court for Bamberg county in 1920, the indictment being for murder, *317 and convicted of manslaughter, and duly sentenced by Hon. Chas. Carroll Simms, special Judge, and appeals and by five exceptions alleges error.
The first exception is:
"The Court erred in forcing the defendant to trial in the absence of Mrs. Williamson, the most material witness in the case on behalf of defendant, and that the ruling that her affidavit on the motion for trial was sufficient to protect the rights of the defendant."
The case had been continued at previous term of Court, but was not on motion of defendant, so for all purposes, practically, it was the first time that the case had been called for trial.
It is an uncontroverted fact that Mrs. Williamson was far advanced in pregnancy, and, according to the affidavit of her family physician, Dr. Fender, her attendance upon the trial might operate seriously upon her, and he gave as his opinion that it would be dangerous for her, in her condition, to attend this trial wherein she would have to testify. It is admitted that Mrs. Williamson was a most important witness for her husband; the killing of Bradham having occurred on account of alleged opprobrious language used to her by him a few days before the killing, this being the inception of the difficulty which led to the killing, and she was present and witnessed the homicide.
Ordinarily a person tried for a capital felony has a right to have his wife present at the trial, and the wife has the right to be present. In the instant case the wife could not be present by reason of physical incapacity. She was the most material witness her husband had. In a measure, she was the prime cause that led up to the difficulty that ended in the killing. She was present *318 and witnessed the killing. She knew as much, if not more, about it than any one else, from its inception to its end.
Mrs. Burnett was alleged to quote Mrs. Williamson by saying, "About that time Mrs. Williamson came out of her bedroom and came towards us and said he was going to kill Ham Bradham, and I looked up and saw a gun." Later on she says, "Mrs. Williamson said, `Get your pistol and finish him; he is not dead yet.'" Mrs. Williamson had no chance to deny this; the only thing that his Honor had admitted was her affidavit made when application was made for bail. All of this was highly prejudicial to the defendant. His Honor was manifestly in error in not continuing the case, on showing made and under all of the facts and circumstances of the case, and this exception must be sustained and a new trial granted. It is unnecessary to consider the other exceptions.
New trial.
MR. JUSTICE GAGE did not participate.
