State v. Bradley

41 S.E.2d 608, 210 S.C. 75, 1947 S.C. LEXIS 6

• Court: Supreme Court of South Carolina
• Decided: February 21, 1947
• Docket: 15917
• Status: Published

Opinions

OxNER, A. J.:

I am in accord with the conclusions of Mr. Chief Justice Baker that (1) the Court below had jurisdiction to try the offense alleged in the indictment and (2) that there was no error in refusing appellant’s motion for a directed verdict of acquittal, but am unable to agree with the conclusion that a new trial should be granted on account of the admission of the testimony of Tom Cowan. I would overrule all exceptions and affirm the judgment below.

Evidently neither the officers nor the solicitor believed the statement of Cowan, made immediately after the liquor was found, that it was his liquor. It was not referred to in the direct examination of the officers by the solicitor but was brought out by appellant’s counsel during his cross examination of these officers. Nor do I think it was the solicitor’s duty to have elicited this fact on direct examination. If the State had used Cowan as a witness in presenting its case in chief and sought to prove by him that it was not his liquor, it would have been the duty of the solicitor to have further brought out the fact that he had previously made a contradictory statement and to have requested the witness to explain the contradiction. But Cowan was not used as a witness at this time. The State was then vouching for the veracity of the officers but not for the truth of a statement made to them by some bystander.

Appellant was the only witness for the defense. She denied that she had any knowledge whatever of there being any liquor in the house or on the premises and stated that she did not see any of the other occupants of the house bring any liquor on the premises. She also testified that Cowan slept in her house at times; that she was there when he came to her home about noon on Saturday and “he didn’t have it (the liquor) when he came there”; that both of them slept in the hall that Staturday night; and that Cowan never left the premises from the time he came until after the officers made the search on the following Sunday morning. After the testimony was concluded for the defense, Tom Cowan was offered as a witness- in reply. He denied sleeping in appellant’s home on Saturday night, stating that he did not arrive there until about daylight Sunday morning. He was then asked by the solicitor whether or not he carried any liquor to appellant’s home. Appellant’s counsel objected to this question on the ground that it did not constitute reply testimony. After a lengthy colloquy between the Court and appellant’s counsel, the Court overruled the objection and Cowan testified as follows:

“Q. Tom, did you bring that liquor there?

“A. No, sir.

“Q. Was any of that liquor there your liquor?

“A. No, sir.”

There was no cross-examination of Cowan. Appellant’s counsel did not seek permission of the Court to offer any-rebutting testimony in her behalf and expressed no desire to do so. The answer to the first question could not have been prejudicial to appellant because she had testified substantially to the same effect. The second question was not specifically objected to but I shall assume that appellant’s counsel intended for his objection to apply to both questions.

Although the quoted testimony by Cowan may not have been strictly in reply, it was a matter largely in the discretion of the trial Judge and his ruling thereabout will not be disturbed except for abuse of this discretion. State v. Williams, 76 S. C. 135, 56 S. E. 783; State v. Burton, 111 S. C. 526, 98 S. E. 856; State v. Simmons, 208 S. C. 538, 38 S. E. (2d) 705. I am not satisfied that there was abuse of discretion in the instant case. But apart from this, appellant is precluded from raising the question under the following rule laid down in State if. Harmon, 79 S. C. 80, 60 S. E. 230: “A defendant cannot avail himself of an error’ in admitting testimony in reply, even so manifest as to show abuse of discretion, unless he has exhausted his remedy in the Court below by asking to be allowed to offer rebutting testimony in his own behalf. The general rule is, that one who seeks relief in an appellate court must show that in the trial below he was deprived of a substantial right, after having exhausted all reasonable means within his reach to preserve it”.

Cowan’s, testimony was not objected to upon the ground that it contradicted the testimony of the officers, nor do I think it necessarily had that effect. He was not asked as to° whether he stated to the officers at the time of the search and seizure that it was his liquor. It is not at all certain that on the stand he would have denied making that statement to the officers.

The other exceptions are.not of sufficient importance to require an extended discussion. On cross-examination appellant was asked whether at the time Cowan stated to the officers that it was his liquor, she knew that statement was untrue. Appellant’s counsel objected. After some discussion, the objection was overruled. The witness then testified as follows :

“Q. He said it was his whiskey?

“A. Yes, sir.

“Q. You knew that wasn’t right? You knew it wasn’t his liquor?

“A. He didn’t bring it there.

“Q. When he came there that Saturday,'he didn’t have nothing with him so you knew it wasn’t his ?

“A. He hadn’t gone no where. He stayed there from that Saturday on.

“Q. Well, you knew it wasn’t his liquor, didn’t you?

“A. He said it was. I don’t know.”

Assuming that the question objected to was improperly framed, it was permissible to ask the witness whether she knew that it was not Cowan’s liquor. Appellant could not have been prejudiced by the ruling of the Court.

The remaining exception grows out of an incident which occurred during the direct examination of appellant. Counsel asked a question but before the witness completed her answer, he proceeded to ask another question. The Court ruled that the witness should be permitted to complete her answer before being asked the next question. Appellant then completed her answer and no restriction was placed on appellant’s counsel in further examining her in any particular he desired. There is no-merit in this exception. The conduct of a trial in respect to a matter of this kind is left to a large extent to the discretion of the trial judge.

The question of whether the sentence imposed is in excess of that permitted by the statute is not raised by any of the exceptions and, therefore, is not properly before us. I prefer to intimate no opinion thereabout.

This opinion having now been concurred in by a majority of the Court, it is the judgment of this Court that all exceptions be overruled and the judgment below affirmed.

Fishburne and StukEs JJ., concur.