[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
July 26, 1920. The opinion of the Court was delivered by
The appellant was tried and convicted of murder, for the killing of Mrs. Lou C. McHugh. The undisputed facts, as appear by the record, are:
"That on June 18, 1919, the defendant, in the city of Greenville, S.C. upon a much traveled street, Pendleton street, went upon the front porch of the residence of Mrs. Lou C. McHugh, who was his mother-in-law, and in open daylight shot her twice with a pistol, the wounds being sufficient to cause death, and they did cause death. One shot was in the right thigh, ranging upward, and the other in the back, ranging slightly upward."
The defendant was convicted of murder, from which he appealed. There are 25 exceptions, but we will adopt the grouping of the appellant in his argument.
1. During the trial, one of the constables, at the request of appellant, allowed the appellant to go out of the auditorium of the courthouse, where the trial was being held, into an adjoining room. The defendant was absent only a few minutes. During the defendant's absence a witness of the defendant was on the stand, and a
few questions were asked on the cross-examination. The defendant's counsel knew that the defendant had been absent, but did not call the attention of the Court to it until after the verdict. The absence of the defendant from the Court room during these few minutes is the error complained of in the first set of exceptions.
The exceptions that raise this question cannot be sustained. The defendant unquestionably has the right to be present at every stage of his trial. This right was not denied him. The constitutional right set up is to face the witnesses against him. The Court is satisfied that no unfair advantage was planned in this case, but to allow a defendant to make void a judgment against him by his own unlawful act, secretly performed during the trial, would be to make a mocking of judicial proceedings. The absence of the defendant was discovered in ample time to have remedied the defect, if his counsel had called attention to the fact when discovered, and it is now too late. There are decisions to the contrary, in other jurisdictions; but we will not follow them.
2. The next assignment of error is the refusal of the presiding Judge to allow the defendant's counsel to use a diagram prepared by him, in his argument before the jury.
One of the defenses was insanity. The witnesses for the defense testified to quite a number of cases of insanity and suicides on both sides of the defendant's family. The defendant's counsel prepared a diagram showing the number and relationship of the relatives of the defendant who had committed suicide and had become insane. There was no evidence to show that the diagram was correct, and the presiding Judge very properly ruled it out. There is no doubt as to the effectiveness of a diagram. The question was as to its accuracy. There was no opportunity to verify it. The right to use this diagram is akin to
the use of a photograph of the locus or a plat of land in argument that had not been proven in the case.
3. The next assignment of error is that his Honor charged the jury that the presumption of innocence remains with the defendant until it is overcome by proof, and should have charged that the presumption continued throughout the trial. The presumption does continue throughout the trial, as to every phase of it; but the presumption is not a conclusive presumption, and must give way to sufficient evidence. The charge was not misleading, and the exception cannot be sustained.
4. The next assignment of error is that his Honor charged that a reasonable doubt is a doubt for which you can give a reason. Exception 8 reads: "Because his Honor erred in charging: `And a reasonable doubt * * * is just what the term implies, a doubt for which you can give a reason. It does not mean * * * a doubt which would arise in the mind of a man who was looking for a doubt, but it means such a doubt, Mr. Foreman and gentlemen, that would arise in the mind of an honest man who is earnestly seeking to know the truth, and, if in the consideration of this case there should arise in your mind such a doubt, it would be your duty under the law to give the defendant the benefit of it and acquit him.'"
His Honor explained a doubt for which you can give a reason as "such a doubt, Mr. Foreman and gentlemen, that would arise in the mind of an honest man who is earnestly seeking to know the truth, and, if in the consideration of this case there should arise in your minds such a doubt, it would be your duty under the law to give the defendant the benefit of it and acquit him." There was no error here.
5. The next error complained of is: "Did he know that the particular act with which he is charged is punishable under the laws of this State? Now, if he did, he is guilty."
The law of this State is stated as follows in State v. Jackson, 87 S.C. at pages 414, 415, 69 S.E., at page 886:
"Under the law of this State, the test is mental capacity or want of it sufficient to distinguish moral or legal right from moral or legal wrong, and recognize the particular act charged as morally or legally wrong."
The leading case on this subject is the case of State v.Bundy, 24 S.C. 439, 58 Am. Rep. 263. It has been reaffirmed in a number of cases. The test may not be the test of insanity in general, but it is unquestionably the test of that degree of insanity that affords immunity from punishment for crime. This exception cannot be sustained.
6. The tenth exception is: "Because his Honor erred in modifying the defendant's first request to charge, which reads: `If, upon all the evidence in the case, there is a reasonable doubt in the minds of the jury whether the act was the result of deliberation or forethought and malice, or whether it was the result of heat and passion upon a sufficient legal provocation, the defendant could not be convicted of murder and should not be convicted of any offense higher than manslaughter.' Modified as follows: `And I add that if you would find that there is the absence of malice, that he killed the deceased in sudden heat and passion upon sufficient legal provocation. If there is any doubt as to whether it is murder or manslaughter, you would give the defendant the benefit of the doubt and find him guilty of manslaughter.'"
The difference between the finding of the "absence of malice" and the "presence of malice" is highly technical and could not have influenced the verdict. This exception is overruled.
7. The twelfth exception is: "Because his Honor erred in charging substantially that if the jury should find that the
defendant had notice to stay away from the McHugh home and went there in spite of that notice, that he would be a trespasser and if he killed the deceased, under those conditions, he would be guilty of murder; whereas, in this case defendant's wife and children were making their home with Mrs. McHugh, and she had the legal right to receive him and he the right to call upon her pursuant to the agreement that he had with her to take her and the children and go away from Greenville."
His Honor charged the jury practically that, if the defendant so conducted himself that his wife could not live with him in safety, and she took refuge with her mother, Mrs. McHugh, and Mrs.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
July 26, 1920. The opinion of the Court was delivered by
The appellant was tried and convicted of murder, for the killing of Mrs. Lou C. McHugh. The undisputed facts, as appear by the record, are:
"That on June 18, 1919, the defendant, in the city of Greenville, S.C. upon a much traveled street, Pendleton street, went upon the front porch of the residence of Mrs. Lou C. McHugh, who was his mother-in-law, and in open daylight shot her twice with a pistol, the wounds being sufficient to cause death, and they did cause death. One shot was in the right thigh, ranging upward, and the other in the back, ranging slightly upward."
The defendant was convicted of murder, from which he appealed. There are 25 exceptions, but we will adopt the grouping of the appellant in his argument.
1. During the trial, one of the constables, at the request of appellant, allowed the appellant to go out of the auditorium of the courthouse, where the trial was being held, into an adjoining room. The defendant was absent only a few minutes. During the defendant's absence a witness of the defendant was on the stand, and a
few questions were asked on the cross-examination. The defendant's counsel knew that the defendant had been absent, but did not call the attention of the Court to it until after the verdict. The absence of the defendant from the Court room during these few minutes is the error complained of in the first set of exceptions.
The exceptions that raise this question cannot be sustained. The defendant unquestionably has the right to be present at every stage of his trial. This right was not denied him. The constitutional right set up is to face the witnesses against him. The Court is satisfied that no unfair advantage was planned in this case, but to allow a defendant to make void a judgment against him by his own unlawful act, secretly performed during the trial, would be to make a mocking of judicial proceedings. The absence of the defendant was discovered in ample time to have remedied the defect, if his counsel had called attention to the fact when discovered, and it is now too late. There are decisions to the contrary, in other jurisdictions; but we will not follow them.
2. The next assignment of error is the refusal of the presiding Judge to allow the defendant's counsel to use a diagram prepared by him, in his argument before the jury.
One of the defenses was insanity. The witnesses for the defense testified to quite a number of cases of insanity and suicides on both sides of the defendant's family. The defendant's counsel prepared a diagram showing the number and relationship of the relatives of the defendant who had committed suicide and had become insane. There was no evidence to show that the diagram was correct, and the presiding Judge very properly ruled it out. There is no doubt as to the effectiveness of a diagram. The question was as to its accuracy. There was no opportunity to verify it. The right to use this diagram is akin to
the use of a photograph of the locus or a plat of land in argument that had not been proven in the case.
3. The next assignment of error is that his Honor charged the jury that the presumption of innocence remains with the defendant until it is overcome by proof, and should have charged that the presumption continued throughout the trial. The presumption does continue throughout the trial, as to every phase of it; but the presumption is not a conclusive presumption, and must give way to sufficient evidence. The charge was not misleading, and the exception cannot be sustained.
4. The next assignment of error is that his Honor charged that a reasonable doubt is a doubt for which you can give a reason. Exception 8 reads: "Because his Honor erred in charging: `And a reasonable doubt * * * is just what the term implies, a doubt for which you can give a reason. It does not mean * * * a doubt which would arise in the mind of a man who was looking for a doubt, but it means such a doubt, Mr. Foreman and gentlemen, that would arise in the mind of an honest man who is earnestly seeking to know the truth, and, if in the consideration of this case there should arise in your mind such a doubt, it would be your duty under the law to give the defendant the benefit of it and acquit him.'"
His Honor explained a doubt for which you can give a reason as "such a doubt, Mr. Foreman and gentlemen, that would arise in the mind of an honest man who is earnestly seeking to know the truth, and, if in the consideration of this case there should arise in your minds such a doubt, it would be your duty under the law to give the defendant the benefit of it and acquit him." There was no error here.
5. The next error complained of is: "Did he know that the particular act with which he is charged is punishable under the laws of this State? Now, if he did, he is guilty."
The law of this State is stated as follows in State v. Jackson, 87 S.C. at pages 414, 415, 69 S.E., at page 886:
"Under the law of this State, the test is mental capacity or want of it sufficient to distinguish moral or legal right from moral or legal wrong, and recognize the particular act charged as morally or legally wrong."
The leading case on this subject is the case of State v.Bundy, 24 S.C. 439, 58 Am. Rep. 263. It has been reaffirmed in a number of cases. The test may not be the test of insanity in general, but it is unquestionably the test of that degree of insanity that affords immunity from punishment for crime. This exception cannot be sustained.
6. The tenth exception is: "Because his Honor erred in modifying the defendant's first request to charge, which reads: `If, upon all the evidence in the case, there is a reasonable doubt in the minds of the jury whether the act was the result of deliberation or forethought and malice, or whether it was the result of heat and passion upon a sufficient legal provocation, the defendant could not be convicted of murder and should not be convicted of any offense higher than manslaughter.' Modified as follows: `And I add that if you would find that there is the absence of malice, that he killed the deceased in sudden heat and passion upon sufficient legal provocation. If there is any doubt as to whether it is murder or manslaughter, you would give the defendant the benefit of the doubt and find him guilty of manslaughter.'"
The difference between the finding of the "absence of malice" and the "presence of malice" is highly technical and could not have influenced the verdict. This exception is overruled.
7. The twelfth exception is: "Because his Honor erred in charging substantially that if the jury should find that the
defendant had notice to stay away from the McHugh home and went there in spite of that notice, that he would be a trespasser and if he killed the deceased, under those conditions, he would be guilty of murder; whereas, in this case defendant's wife and children were making their home with Mrs. McHugh, and she had the legal right to receive him and he the right to call upon her pursuant to the agreement that he had with her to take her and the children and go away from Greenville."
His Honor charged the jury practically that, if the defendant so conducted himself that his wife could not live with him in safety, and she took refuge with her mother, Mrs. McHugh, and Mrs. McHugh gave him notice not to enter upon her premises, then the defendant had no right to do so, but must pursue the peaceful methods provided by law. That is correct.
The fourteenth and fifteenth exceptions again refer to immunity from punishment for temporary or permanent mental disability. This has been considered.
8. The sixteenth exception is: "Because his Honor erred in charging: `The opinion of an expert is evidence subject to the same rules and tests of other witnesses, and if you find expert evidence giving opinions utterly at variance with facts established by unimpeachable testimony, then such opinion would not avail the defendant.' "
Appellant cannot complain when his Honor practically told the jury to believe the experts, unless their testimony was contradicted by unimpeachable testimony.
9. The next exception complains of his Honor's exhortation to the jury to do their duty. His Honor said: "If it (your duty) is to convict him, you will convict him. If it is to turn him loose, you will turn him loose."
His Honor did not say or intimate what the duty was, and there is no error here.
10. The principles underlying the nineteenth exception have been considered. Dr. Mauldin testified that he had informed the family some time before the homicide that the defendant was crazy and should be "put up." That testimony should have been received. It amounts to this:
"I examined the defendant some time before the homicide, and then warned the family that he was insane and dangerous."
It may have involved what the doctor said, but it included what he did. It involved the main point in the defendant's case, and the doctor's estimate of the obligation of his position as physician. I think the testimony should have been received, but the majority of this Court think it should not have been allowed.
11. One of the defendant's expert witnesses was Dr. Taylor, who did not live near the place of trial and was unknown to the jury. When Dr. Furman, who did live near the place of trial, and was presumed to be known by the jury, was on the stand, he was asked as to the reputation of Dr. Taylor as an expert on insanity. On the objection by the State the testimony was excluded. If Dr. Taylor's testimony had depended primarily on his veracity, there can be no doubt that his reputation for veracity could have been sustained by other witnesses. Here the value of Dr. Taylor's testimony primarily depended upon his ability as an expert, and I know of no reason why his reputation as an expert in mental diseases might not be sustained in the same way. The majority of the Court think otherwise.
The ordinary questions asked of a witness as to the character of another witness are: Do you know the reputation of this witness? Is it good or bad? From that reputation would you believe him on oath?
This exception is not sustained by the majority of this Court.
12. The State offered a witness named Rhodes, to testify as to the reputation in the family as to the sanity of several members of the family, who, defendant's witnesses had said were insane. This was strictly in reply to the testimony of defendant's witnesses and in the same way, to wit, the reputation in the family. To this, under the circumstances, the appellant cannot complain, and this exception is overruled.
13. There had been alimony proceedings between Mr. and Mrs. Bramlett. The defendant had introduced some affidavits used in that case. The State offered the whole record, including the complaint, and affidavit of Mrs. Bramlett, in verification of it. To this the defendant objected. The introduction of the record was allowed on the ground that, as the defense had used a part of the record, the State was entitled to the whole record. There is a general rule that, when a part of a record is introduced by one side, it opens the way for the balance of the record by the opposite party. This rule is not universal nor absolute.
It is not necessary to discuss all of the limitations here. Any mere rule of evidence may be altered at any time by the Constitution of the State or by statute not in conflict with the Constitution. The Constitution of this State (1895, art. I, sec. 18) gives to the accused the right "to be confronted with the witnesses against him." Mrs. Bramlett was not a witness for the State, and the defendant was not confronted with this witness. The violation of this constitutional right is clear and unmistakable. The affidavit introduced was the verification of the complaint in the usual form; she swore to the truth of the statements of her complaint. This complaint, of course, was signed and presumably drawn by her attorneys. The complaint contained
in part statements of fact, and in part conclusions of facts. Causes tried on affidavits alone are very unsatisfactory. It was impossible to exercise the right of cross-examination. It is equally clear that the testimony was incompetent on that account.
In addition to this, the statements in the record were introduced as the statements of Mrs. Bramlett, who was the wife of the defendant. The wife is not a competent witness against her husband. State v. Workman, 15 S.C. 540;State v. Dodson, 16 S.C. 453, and others.
The exception that raises this question is sustained.
The judgment is reversed, and a new trial ordered.
MR. JUSTICE GAGE concurs.
MR. JUSTICE WATTS. I concur in the opinion of Mr. Justice Fraser, as to the admission of Dr. Mauldin's testimony and with that exception in Mr. Justice Hydrick's opinion.
MR. JUSTICE HYDRICK. I concur in the result. I think the Court erred in refusing to allow defendant's counsel to use the diagram prepared by them in argument to the jury. It was not evidence, and it was not sought to be used as evidence. It was merely a graphic illustration of the evidence as to insanity in the defendant's family, and in that way presented the view of the defendant's counsel as to the force and effect of the testimony and the inference which should be deduced from it. The reason may be reached and influenced through the eye as well as the ear, and it may be done more forcefully in the former than in the latter way in some circumstances. The denial of the right to present their argument to the jury in that way was the denial of the right to be fully heard in argument. It must not be inferred from this that this Court would infringe upon the discretion of the trial Court to prevent abuse of the privilege of legitimate
argument, and, standing alone, this error might not have been deemed sufficient to require reversal.
I do not agree that the statement of Dr. Mauldin to members of defendant's family as to his sanity was competent. I think it was incompetent, and properly excluded.
I think the ruling as to Dr. Furman's testimony was correct. He testified, without objection, that Dr. Taylor was one of the best alienists in the country. He was then asked as to his confidence in him. The answer was properly excluded. It was for the jury to decide what confidence or weight his testimony should have, without regard to Dr. Furman's opinion as to the weight it should have or the weight that he would give it, in the absence of any attack on Dr. Taylor's testimony.
MR. CHIEF JUSTICE GARY concurs.