State v. Jones

7 S.E. 296, 29 S.C. 201, 1888 S.C. LEXIS 132

• Court: Supreme Court of South Carolina
• Decided: September 17, 1888
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Justice McIver.

The appellant, under an indictment for the murder of Edward Pressley, sr., was convicted of manslaughter, and being sentenced to twenty-five years’ imprisonment in the State penitentiary, appeals to this court upon numerous exceptions—twenty-four in number. These exceptions make four general assignments of error: 1st. In empannelling the jury. 2nd. In ruling as to the admissibility of evidence. 3rd. In the conduct of the trial. 4th. In the charge to the jury.

The particular ground upon which the first assignment of error rests is that “his honor erred in refusing to permit the prisoner to have L. S. Mellichamp sworn and examined on his voir dire when presented as a juror to the prisoner.” It appears, however, from the statement in the “Case” that there is no foundation in fact for this exception; for, although when the demand was first made that this juror should be examined on his voir dire, the State objected, and the court sustained the objection, yet immediately afterwards the objection was waived, and the juror was in fact examined upon his voir dire ¹ The fact that counsel for the prisoner had announced, before the objection was withdrawn, that they challenged the juror cannot affect the question. The prisoner was deprived of no legal right, and it is clear that this exception cannot be sustained.

The second general assignment of error will be considered under the several specifications in which it is presented by the exceptions ; for a proper understanding of which it will be necessary to make a brief statement. When Charles Brooks, who seems to have been the only eye witness of the killing, was on the stand, he was asked by counsel for prisoner whether, in his testimony at the coroner’s inquest, he had not made certain statements differing from those made by him while on the stand as a witness in this case, which he denied, and in the defence the coroner was offered as a witness to prove what Brooks had testi-, fied on the inquest. ■ For this purpose the coroner produced the proceedings at the inquest, containing the testimony of Bi-ooks, as taken down by him and signed by Brooks, and when asked to read what Brooks had then said, the court, upon objection, ruled that while the witness might refer to the testimony in writing for the purpose of refreshing his memory, yet he must testify from his own memory and not from the writing. The witness was then asked if Brooks, at the inquest, made a certain statement, different from that made by him on the stand, to which he replied in these words : “To the best of my'knowledge and belief he said that, Of course, I can’t remember exactly the words.” The question was then asked: “You remember that was what was substantially testified to?” which question was objected to and ruled out, and this is made the basis of the third exception— that the Circuit Judge erred in ruling that the coroner could not testify to the substance of what Brooks had testified to at the inquest.

After the cross-examination of the coroner, which seems to have been designed to show that the coroner was testifying from the paper and not from his memory as refreshed by the paper, the attorney general moved “to strike out the evidence given for the purpose of contradiction,” upon which motion the court reserved its decision until the close.of the testimony, when the decision was announced in these words: “I shall decline to strike out the testimony, leaving the jury to say how far the witness was able to testify on that question as a matter of fact;” and in response to an inquiry from counsel for the prisoner whether that ruling included the testimony taken at the inquest, answered that it did not; whereupon prisoner’s counsel again insisted upon their right to offer the testimony taken at the inquest, which was again denied. After the failure of counsel for prisoner to get in the testimony of Brooks at the inquest, he then offered that testimony as an affidavit of Brooks, and this being rejected, constitutes the basis of the 4th exception.

As we understand the matter, the precise questions raised'by the second, third, and fourth exceptions are these : 1st. Whether, when the purpose was to contradict the witness Brooks, it was competent for the coroner, who had taken down his testimony at the inquest in writing, to prove what he then said, by reading what he had then taken down, or rather so much of it as Brooks denied saying, or whether he must speak from his memory alone, refreshed by looking at the paper. 2nd. Whether, in speaking from his memory alone, he was at liberty to state substantially what Brooks had said at the inquest, or whether he must confine himself to the language then used by Brooks. 3rd. Whether the testimony of Brooks, taken at the inquest and signed by him, could be offered in evidence as an affidavit of Brooks, for the purpose of showing what he had previously stated in regard to the occurrence as to which he was called to testify.

It is a little singular that neither our own researches nor those of the counsel engaged in this case have been able to supply us with any direct authority upon the precise point raised by the first question presented by these three exceptions; but it seems to us that both upon principle and analogy the ruling below can be shown to be erroneous. It will be observed that the question here is not (as it was in State v. Campbell, 1 Rich., 124), whether the testimony of a witness, who has subsequently died, taken at a coroner’s inquest, is competent evidence against the prisoner, though oven that point was decided by a divided court, and is the subject of some conflict of authority elsewhere; but the question here is as to what a witness said on a previous occasion. It seems to be conceded that any one who heard Brooks’s testimony at the inquest would be competent to prove, from his own memory, what Brooks then said, and, upon well settled principles, it seems to us that one who not only heard the testimony, but took it down carefully in writing at the time it was delivered, would be equally competent to prove from such writing what the testimony actually was. Indeed, the testimony in the latter case would be more satisfactory than in the former, for there would be a greater certainty that one who was testifying from a writing made by himself at the time could accurately and fully reproduce the testimony in question, than one who relied upon his memory only.

This view is not entirely without the support.of authority. Thus in Phillips on Evidence, 297, it is laid down that where informations are judicially and regularly taken, and the informant is afterwards examined as a witness at the tidal, the information given by such witness may be used, on the part of the prisoner, to contradict his testimony; and as an example of this, Lord Stafford's Case (3 St. Tr., 131) is cited, where the depositions of a witness, taken before a justice of the peace, were read at the instance of the prisoner, “in order to take off the credit of the witness by showing a variance between the depositions and the evidence given in court viva voce.” In State v. Rawls (2 Nott & McC., 331), it was held that a witness who had made a memorandum in writing of certain facts at the time such facts occurred, for the purpose of perpetuating the memory of them, and could at any subsequent period swear that he had made the entry at the time for that purpose, and that he knew, from that memorandum, that the facts did exist, it ívould be good evidence, although he might not retain a distinct recollection of the facts themselves. This ease has been recognized in several subsequent cases. Cleverly v. McCullough, 2 Hill, 446; Bank v. Zorn, 14 S. C., 451; State v. Collins, 15 Id., 373.

It is true that neither in the case of Rawls nor in any of the other cases cited was the testimony in question offered for the purpose of contradicting a witness, but for the purpose of establishing some fact material to the issue; but we do not see how this can affect the question under consideration. If such testimony is competent to establish a fact material to the issue, we can see no reason why it should not be competent for the purpose of contradicting a witness, provided always that the proper foundation for such contradiction has been laid, as to which there is no question in this case; for the witness, Brooks, was fully advised, and his attention specially called to what he had said at the inquest. The principle in both cases is the same, and the rule should be the same. The nearest approach to a distinct decision of the precise question under consideration which we have been able to find is in the case of The Charles Morgan (115 U. S., 69). where the depositions, of a witness made in another case were received in evidence for the purpose of contradicting such witness; for while it is said in State v. Prater (26 S. C., 203), that the evidence of the witnesses as taken down by the coroner at an inquest “would seem to constitute the best and highest evidence of what a witness may have testified to before the coroner,” that seems to have been a mere passing remark, and can scarcely be regarded as an adjudication of the question.

We are now, however, after full consideration, prepared to adopt and affirm fully the proposition there stated. It is in full harmony with, and rests upon the same principle as, the doctrine declared in the case of The State v. Branham (13 S. C., 397), where it was held that Avhen a party charged with crime makes a statement at the preliminary hearing before a trial justice, which is taken down in Avriting, and such statement is relied upon as a confession by the accused, the written statement is the best evidence upon the subject, and parol evidence as to what the accused said is incompetent where the Avritten statement can be produced. For, as is Avell said by Mr. Justice McGowan in that case, “From the infirmity of memory there is ahvays more or less uncertainty about parol testimony, especially in reference to declarations — mere spoken words.” So here, we think, that the best evidence of Avhat Brooks said at the coroner’s inquest Avas his testimony as taken down by the coroner, a public officer charged with that special duty, at the time the words fell from the lips of the witness — much better than the recollection of the coroner, even when refreshed by reference to the written testimony ; and we think it was error to rule otherwise.

It is true that, in the case of The State v. McElmurray (3 Strob., at page 42), there is a dictum of Judge Frost in these words: “The memorandum of the testimony of the witnesses, examined before the coroner, taken by a person who was present, would not be competent evidence, if it were provedand the fair inference is that this language was used in reference to the competency of such testimony to contradict a Avitness examined for the State; for, under the case of The State v. Campbell, supra, such testimony would be clearly incompetent as against tike prisoner. But even assuming that the language was used solely with reference to the competency of such testimony for the purpose of contradicting a witness, it cannot be regarded as a decision of the question, for no such testimony was offered, and hence no ruling upon that question could have been made, and the remark must be regarded as a mere obiter dictum upon a point not arising in the case, and manifestly not considered by the court. Indeed, it seems to be assumed in that case that the affidavits made by two of the witnesses for the State before the magistrate who issued the warrant, would be competent for the purpose of contradicting those witnesses, though, for a like reason, the case cannot be regarded as deciding that point.

This is the question made by appellant’s fourth exception; for when the court ruled that the coroner could not read the testimony of Brooks taken by him at the inquest, for the purpose of showing that the witness had then made a statement different from that made by him on the stand, counsel for the prisoner then offered to read that testimony for the same purpose, as an affidavit or written statement signed by Brooks, which was ruled incompetent. If Brooks had, on the day of the homicide or shortly afterwards, written a letter, or procured some one else to write a letter for him, which he signed, giving an account of what he saw of the conflict between the prisoner and the deceased, it- is difficult to conceive of any good reason why such letter should not be competent to show that the accourit then given by him was different from that given by him when examined as a witness in the case. Accordingly we find it said in 1 Starkie on Evidence, part II., page 145, upon the authority of DeSailly v. Morgan (2 Esp., 691), that the credit of a witness may be impeached “by proof that he has said or written that which is inconsistent with his present testimony; for this purpose a letter may be read in which he has given a different account of the matter.” See, to same effect, 1 Greenl. Euid., section 463. The case of Conrad v. Griffey (16 How., 38), clearly implies that such a letter would be competent evidence, provided the proper foundation is laid by calling the attention of the witness, whom it is proposed to contradict, to such letter.

The question presented by the third exception does not properly arise, for although the Circuit Judge did, when the question was first made, rule that a witness called upon to prove what another had previously said, with a view to the contradiction of the Litter, could not testify merely to the substance of what such other witness may have said, but must confine himself to the language used; yet when his honor, at the close of the testimony, made his ruling upon the motion to strike out certain testimony, he in effect permitted the testimony of the impeaching witness, as to the substance of what the other witness had said, to stand, leaving it for the jury to say how far such testimony was a correct statement of what the witness proposed to be impeached had really said. But as we may be mistaken in this, inasmuch as the “Case” does not show clearly what was the scope and effect of the final ruling, we will consider whether there was any error in the first ruling.

Owing to the imperfection of the human memory, and the impossibility in many, if not in most, cases of reproducing by parol evidence the exact words which a witness may have used on some occasion previous to that when he is testifying, it seems to us that it would be too rigid and impracticable to lay it down as a rule that when a person is called upon to prove what another has said on a previous occasion, he must confine himself to the words used by such other person, and will not be allowed to state substantially what he ha.s said. It seems from what is said in 1 Greenleaf on Evidence, section 165, and notes, that while the old rule was rigid in requiring that a witness called upon to prove what a deceased witness testified to at a former trial, must confine himself to the precise words used, and was not at liberty to give the substance of the testimony of such deceased witness, yet now it is generally considered sufficient if the witness is able to state the substance of what was sworn on the former trial. To the same effect, see Hepler v. Mt. Carmel Savings Bank, 97 Penn. St., 420; S. C. 39 Am. Rep., 813; and Marler v. State, 67 Ala., 55; S. C. 42 Am. Rep., 95, in which Mr. Justice Somerville uses this language: “The well settled opinion now obtains that the precise words need not be repeated on the second trial, but only the substance of the testimony given in the former trial.” The same doctrine is laid down by the Supreme Court of the United States in Ruch v. Rock Island, 97 U. S., 693. It seems to us that the same rule should apply in a case like the present.

Our next inquiry is whether there was any error in refusing to allow testimony to be offered for the purpose of sustaining the general character of Pickens W. Hughes, a witness for the prisoner, after his character had been assailed by the'State in reply.

It seems to be universally conceded that where the general character of a witness is impeached by evidence tending to show that his character is so bad that he is unworthy of belief, the party offering the person so assailed has the right to introduce evidence in defence of his character; and, as is said by Earle, J., in Farr v. Thompson (Cheves, 37), this rule is designed for the protection of the witness himself, as well as of the party offering him. Indeed, it is laid down by such standard authorities as Phillips, Starkie, and Grreenleaf, that even where the testimony of a witness is assailed by evidence that he has made contrary statements, evidence may be offered to sustain his character, though in this State that doctrine has been repudiated, and the privilege of offering evidence to sustain a witness’s general character is confined to cases in which such character has been directly assailed by evidence. See Chapman v. Cooley (12 Rich., 654), where Wardlaw, J., draws a distinction between character and credit, holding that evidence tending to show that a witness has made contradictory statements in reference to the matter under inquiry is more properly an assault upon the credit rather than the character of the witness, and therefore does not open the way for evidence to sustain the general character of the witness, and that such evidence is admissible only when the general character of the witness is directly assailed. But as the general character of the witness Hughes was directly assailed by the State, it follows that even under the rule as restricted in this State, it was competent to offer evidence to sustain his character.

It is contended, however, that, under the well settled rules regulating the time for the offering of evidence by the respective parties, after the State had closed its testimony in reply, no further testimony of any kind could be offered by .the defence. Such a view would not only practically defeat, but absolutely nullify the well settled rule that where the general character of a witness is directly impeached, it is competent to offer evidence to sustain his character, and would place it in the power of the State to attack the character of any or even all of the witnesses for the defence, without the fear of any contradictory evidence. For it is quite clear that until the character of a witness is attacked, it is not competent to offer evidence to sustain it, as neither the witness nor the party offering him is at liberty to put his character in issue. It follows, therefore, that no attack upon the general character of a witness for the defence, by evidence directly assailing it, could be made until the State came to its reply, and if it should be held that, on account of the general rule in regard to the time for offering evidence, the defence could offer no testimony of any kind after the State has closed its reply, the inevitable result would be, that while the State or a plaintiff would have the opportunity of offering evidence to sustain the general character of any of their witnesses who may be attacked, the defence would in every case be deprived of such privilege. Such a one-sided and manifestly unjust rule cannot receive the sanction of this court.

The true view is, that when the State, or a plaintiff, attacks the character of a witness for the defence, a new issue is then raised, which could not have been before presented, and upon such new issue the defence has the right to offer testimony, as it could not before have been offered. It will not do to say, as has been said, that the view which we have taken, would lead to an interminable protraction of the investigation, and the controversy might go on indefinitely; for it must be rememered that the extent of the inquiry into character is sufficiently under the discretion of the court to prevent the evil result apprehended.

The sixth and eighth exceptions impute error to the Circuit. Judge in proceeding with the trial in the absence of the prisoner. It appears that after a recess for dinner the senior counsel for the prisoner resumed his argument, and after he had been speaking for about five minutes, his junior mentioned to the stenographer that the prisoner had just been brought in, after the argument had been resumed, and requested him to make a note of it. “The stenographer makes this note, at the request of counsel, but the fact, as reported by counsel, did not come within the personal knowledge or observation of the stenographer.” We do not think this would furnish any ground for a new trial, for, in the first place, there is no legal evidence that the prisoner was absent at any stage of the trial. The mere statement of counsel, not brought to the attention of the court, though undoubtedly entitled to the highest credence as between man and man, does not furnish such legal evidence as courts act upon. The proper course would have been to call the attention of the court to the matter and had some adjudication or other action by the court upon it.

Again, it appears that after the jury had been out for some time, they were called in and asked if they desired any further instruction as to the law, to which they replied in the negative, whereupon they were told to retire to their room and when they agreed upon their verdict they could send for the judge and the counsel in the case, and have their verdict received and be discharged. When this occurred the prisoner was not present. We do not think this was any violation of the rule under which the prisoner is entitled to be present at every stage of his trial. What occurred was no part of the trial. There was no additional or fresh statement of the testimony and no instruction as to any matter of law—nothing that would constitute any part of a trial.

The next error assigned is in limiting the time of argument to two hours for each counsel. In view of the statute upon this subject (G-en. St,at., § 2166), which expressly limits the time for argument to two hours for each counsel, “unless he shall first obtain the special permission of the court” to occupy a longer time, we see no possible foundation for this assignment of error, for the record shows that, before the commencement of the argument, counsel Avere distinctly informed that they would be required to keep within the limit allowed. ¹

The 9th exception alleges error in saying to the jury that the attorneys on either side are not supposed to be impartial, and that the jury are to take their statements both on the law and facts guardedly. There certainly Avas no error of laAV in this. The jury were not instructed to disregard the comments of counsel either on the facts or on the application of the law to the facts, but were simply cautioned to receive such comments guardedly, as they proceeded from persons who are not supposed to be impartial, and this was and is in every case strictly true.

So, too, there was no error in saying'to the jury that if the court mistook the law, the court could be corrected, for this likewise is strictly true, and was no invasion whatever of the province of the jury ; nor should it have had any tendency to make the jury less particular in scrutinizing the facts, as is suggested in appellant’s argument. This remark has been often made to juries, and we have never before heard its propriety questioned.

The tenth exception is in these words: “Because his honor erred in charging the jury ‘that a juror can neither consider any fact which comes within his personal knowledge, nor can he communicate it to the other jurors without being in contempt of the court and violating his solemn oath,’ thereby excluding from the consideration of the jurors their personal knowledge of the witnesses in reaching a conclusion as to their credibility.” As we have often had occasion to say, the correctness of any legal proposition submitted to a jury is not to be tested by considering it abstractly — detached from the context in which it is found; but it must be considered in the connection in which it is found. So considering the language of the Circuit Judge above quoted, it is quite clear that there was no error, and no room for the inference that the jury were to exclude from their consideration, in reaching a conclusion as to the credibility of any of the witnesses, their personal knowledge of such witnesses. From the language of the Circuit Judge, immediately preceding that assigned as error, it would seem that one of the jurors accepted by the prisoner knew some fact material to the defence, or at least supposed to be so, and it was manifestly in reference to that juror alone that the alleged erroneous charge was made, and so applied, it was strictly correct.

The same general remarks may be made in reference to the 15th exception, for there certainly wras no error in using the language there complained of in the connection in which it was used. The jury were told to inquire: “Was defendant in fault ? Was he on land to which he had the right of possession ? From what point did he approach Edward Pressley, sr. ? For what purpose ? Was it to order Edward Pressley, sr., from the land ? If not (and there is no evidence tending'to prove it; on the contrary, defendant testifies that he was on his way home), the possession of the land can have no influence in determining the question of self-defence in the case of the killing of Edward Pressley, sr., whatever influence it may have had in determining the question of self-defence as to the killing of Charles Pressley and Edward Pressley, jr.” The plain meaning of the alleged objectionable language, in the connection in which it was used, was this — if the prisoner, after killing Edward Pressley, jr., was, as he himself testifies, on his way to his house, and Avas intercepted by Edward Pressley, sr., Avho approached him, Avith a stick in one hand and a pistol in the other — “made at me”— then clearly the possession of the land could have no influence in determining the question of self-defence in the case of the killing of Edward Pressley, sr., for such killing could in no sense be said to have been done in an effort to eject Edward Pressley, sr., from the land, but rather to protect himself from the alleged personal assault of said Edward, sr.

The 14th exception imputes error to the Circuit Judge in expressing his opinion to the jury as to the character of the homicide in violation of the provisions of the constitution. The point of this exception, as we learn from the argument of appellant’s counsel, is, that the Circuit Judge, in speaking of the field Avhere the fatal encounter occurred, characterized it as the “field of blood.” We must confess that Ave are unable to perceive why such an expression could be regarded as any indication Avhatever of the judge’s opinion as to the character of the homicide. Considering the undisputed fact that an aged father and his íavo sons had on the same day, and Avithin a very short period of time, fallen by the hand of violence in that field, such an expression would be entirely appropriate, even if there had been the clearest and most indisputable evidence that this triple homicide was entirely justifiable. Indeed, after a careful consideration of the entire charge (which, for a full and proper understanding of this decision, should be set out at large in the report of the case), it seems to us that the charge rvas eminently fair.

The 23rd exception is taken under a misapprehension of his honor’s charge. He had already, in his general charge, instructed the jury in substance as asked in the first portion of the 14th request, which is made the basis of this exception, and after saying that the latter portion of the request — as to the failure to attack a witness — was good law, proceeded to explain further that the mere failure to attack a witness was not a reason why his testimony should be believed, as the jury must form their own conclusions from all the testimony in the case, as well aS' from the conduct of the witness upon the stand, whether his testimony was to be believed. From the charge as set out in the “Case,” the judge does not appear to have used the language attributed to him in the latter part of this exception — “whether he (the witness) has been attacked or not, is not a matter which should influence you” — but, on the contrary, he had approved that portion of the request which declared that a failure to attack a witness, or an unsuccessful attack, was a proper matter for the consideration of the jury.

The 17th and 19th exceptions assign error to the Circuit Judge in charging as to the general presumption of malice arising from the mere fact of killing. He was requested to charge : “That while the law presumes malice from the mere fact of intentional killing, yet when all the facts are brought out in the evidence there is no room for presumptions, and the State affirming malice must prove it.” This was charged with the following modification : “That the presumptions may be a part of the evidence, and the State must have the preponderance of the evidence on the whole case.” It seems to us that there was error in thus modifying the request, especially as to the preponderance of the evidence. It has been held in two cases in this State (State v. Colemar, 6 S. C., 185, and State v. Hopkins, 15 Id., 153), that while the law does presume malice from the mere fact of intentional killing, yet when the facts attending the homicide are brought out, there is no room for the presumption, and the State must prove the malice from the facts and circumstances attending the homicide, without any aid from the artificial presumption. Of course, this, like all other facts, must be proved beyond a reasonable doubt, and not merely by the preponderance of the evidence. This view has the support of that distinguished judge, Chief Justice Shaw, as well as of the courts of many of the States. See Commonwealth v. Hawkins, 3 Gray, 463; State v. Patterson, 45 Vt., 308; and the other cases cited in a note to section 18 of 1 Greenleaf on Evidence, 14th edition.

All the other exceptions, except the 24th, which is too general to require further notice, impute error to the Circuit Judge in various forms in laying down the law as to the doctrine of self-defence. Without considering these exceptions in detail, we think that the charge considered as a whole, except perhaps in one particular, is not justly amenable to exception, and that its correctness is sufficiently vindicated by the Circuit Judge in his general charge, as well as in his remarks upon the several requests to charge, all of which, as we have hereinbefore suggested, should be fully set out in the report of the case. The particular exception above alluded to is in the use of the word ‘possible” in defining the law of self-defence, as follows: “Homicide, in self-defence, is where one who hath no other joossible means of preserving him from death or great bodily harm, by one who combats with him, on a sudden quarrel, kills the person who reduces him to such inevitable necessity.” The word “possible” followed by the word “inevitable” is perhaps too strong. The law, recognizing the imperfections of human nature, does not require that one charged with homicide should show that there was no other possible means for escape when he struck the fatal blow, but he is only called upon to satisfy the jury that, under all the circumstances by which he was surrounded, he really believed there was a necessity for taking the life of his adversary in order to preserve his own, or to save him from serious bodily harm, and that, in the opinion of the jury, those circumstances were such as would justify such a belief. State v. McGreer, 13 S. C., 464.

The judgment of this court is, that for the errors of law above indicated, the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.

Mr. Chief Justice Simpson and Mr. Justice McGowan concurred in the result.