State v. Prater

2 S.E. 108, 26 S.C. 198, 1887 S.C. LEXIS 39

• Court: Supreme Court of South Carolina
• Decided: February 28, 1887
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Justice McIver.

The appellant, with two others, Bill Gordon and. Titus Ferguson, was indicted for murder, the charge in the indictment being that appellant fired the gun, and that the other two parties were present aiding and abetting. The jury rendered a general verdict of guilty, with a recommendation of Gordon and Ferguson to the mercy of the court. A motion for new trial was submitted to the Circuit Judge who granted the motion as to Gordon and Ferguson, but refused it as to the appellant, who thereupon gave due notice of appeal upon several grounds which will be considered in their order.

The first ground alleges error in allowing a challenge for cause made by the State to one of the jurors presented, upon the ground that he was surety on the recognizance of the defendant, Gordon, in face of the fact that this juror when examined on his voir dire, had sworn that he was not sensible of any bias or prejudice in the cause, and that he had not expressed or formed any opinion therein. (It is'perhaps proper to note here that i.n the printed “Case” as prepared for argument in this court, it is stated that the juror on his examination, “showed” that he was not sensible of any bias, &c., but at the hearing it was admitted that this was a misprint and that the word should be “swore” instead of “showed.”) It is quite clear that the mere fact that a given juror swears that he is not sensible of any bias would not be sufficient to qualify him to sit as a juror in a particular case; for if that were the rule, then a close friend, or even a near relative of the accused, might by simply swearing that he was not sensible of any bias, force himself upon the jury.

Indeed, the very language of the statute (section 2261 of the General Statutes), shows conclusively that the question is addressed to the discretion of the Circuit Court; and if the judge of that court is not satisfied that the juror in question is indifferent in the cause, he should be rejected and another called in his place. The language is: 11 If it appears to the court that the juror is not indifferent in the cause, he shall be placed aside as to the trial of that cause, and another shall be called.” This is the construction which has already been given to that statute in the case of The State v. Dodson, 16 S. C., 459, and followed in the case of The State v. Coleman, 20 Id., 448. If, therefore, it appeared to the Circuit Judge, from the fact that the juror in question was surety on the recognizance of one of the defendants, or from any other fact appearing in the examination, that the juror was not indifferent in the cause, it was not only his right but his duty to reject the juror and have another called in his place.

The fact that the 'juror rvas not the surety of the appellant here, and might, therefore, have been wholly indifferent so far as Prater was concerned, cannot affect the question. The three parties were tried together, and if any juror presented appeared not to be indifferent as to either one of the three, that was sufficient to warrant his rejection. The right of challenge secured to the accused does not carry with it the right of selection, but simply the right of rejection. If, therefore, the appellant had particularly desired to select the juror in question, and he had been challenged by either of the others, or had been deemed not indifferent as to either of the others, he could not properly be sworn as a juror in the case. State v. Wise and Johnson, 7 Rich., 412; State v. Gill, 14 S. C., 411. The first exception cannot, therefore, be sustained.

The second exception was very properly abandoned by the counsel who so zealously aud forcibly presented the case of the appellant here, as it is quite clear that it could not be sustained.

The third exception is in the following language: “Because his honor erred in refusing evidence offered by defendant, that Ben Toby, a witness for the State, had made two contradictory statements before the coroner, as to facts testified to by said witness at the trial, relating to the whereabouts of Bill Gordon, one of the defendants, on the night of the killing of Andrew Jackson, the said witness having been interrogated concerning the same, and the deposition before the coroner having been put in evidence.” It seems that on the trial of this case Ben Toby stated that he did not, when first interrogated by the coroner, deny seeing Gordon on the night the homicide was committed, and the testimony which was rejected was offered for the purpose of showing that Toby did so swear before the coroner. We are unable to see how the testimony which was rejected could possibly affect this appellant, and, therefore, even if there was error in rejecting it, so far as Gordon was concerned, that would furnish no ground for a new trial in the case presented for our determination. But when we consider that the statute (section 2675 of the General Statutes) expressly requires that: “The testimony of all witnesses examined upon an inquest shall be taken down in writing by the coroner and signed by the witnesses,” and that the evidence so taken down shall be filed with the clerk (section 719), this would seem to constitute the best and highest evidence of what a witness may have testified to before the coroner and that was already before the court. We do not think that this exception can be sustained.

The fourth exception is not as specific as it should be, but nevertheless in a case of such gravity as this we will not decline to consider it. As we understand the exception, the error complained of is that when Dr. Ilydriek was placed upon the stand to sustain the character of Riley, one of the witnesses for the State, the usual formula employed in impeaching or sustaining the general character of a witness was not strictly pursued. We do not understand that any precise form of words in which a witness offered to impeach or sustain the character of another witness shall be interrogated, has ever been established so firmly as to require that such form shall be followed with rigid exactness. The case of Dollard v. Dollard, 1 Rice Dig., 294 (not reported elsewhere), itself shows this; for while that case declares that the most proper question is “what is the general character of the witness, good or bad?” yet the case goes on to say that, “some have thought it most expedient to ask, in the first 'instance, ‘what is the general character as to veracity ?’ Now, although there can he no objection to such a question, as the inquiry relates to veracity, yet it is not as proper as the' more general question,” &c. See also the remarks of O’Neall, J., in Anon., 1 Hill, at page 258. Also 1 Stark. Evid., 145. It seems to us, therefore, that when a witness is offered, either for the purpose of impeaching or sustaining the general character of another, there is no set form of words which must be followed with rigid exactness in interrogating such witness. The important and material matter is whether the witness under examination is acquainted with the general character of the witness, whose character is under scrutiny, and what that character is, and that information may be elicited by any form of interrogatory, not otherwise objectionable, whether it conforms strictly to any stereotyped formula or not.

The fifth exception — that his honor erred in permitting counsel for the State to submit a request to charge at the close of the charge to the jury — seems to have been taken under a misconception of the facts. For it appears from the report of the Circuit Judge, that this request to charge was not in fact submitted at the close of the charge, but was really presented at the close of the testimony, and when the judge had concluded his charge one of the counsel for the State simply called the attention of the judge to the fact that, in delivering his charge, he had omitted any reference to the request which had really been submitted at the proper time. So .that in reality the counsel for the State simply called the attention of the judge to an inadvertent omission in the charge, and in this there was certainly no error or violation of the rule. It would be something remarkable if a Circuit Judge, called upon to charge a jury at the conclusion of a tedious and exciting trial, should not sometimes commit an oversight or make an inadvertent omission, and surely to call his attention to such oversight or omission, so that it may at once be corrected or supplied, is surely anything else but error.

We do not wish to be understood as implying, by what we have said, that the violation of the rule prescribing the proper time for submitting requests t.o charge, with the acquiescence of the Circuit Judge, would necessarily constitute such an error of law as would require that a new trial should be granted. This rule, as we understand it, was designed mainly for the benefit of the Circuit Judge, so as to give him time to consider the several propositions of law relied upon by counsel, and to arrange his charge accordingly; and if he chooses to dispense with its strict observance as to the time when the requests to charge are submitted, we are not prepared to say that this would constitute such an error of law as would entitle an appellant to a new trial.

The sixth exception — that the Circuit Judge erred in refusing the several requests to charge as set out in this exception — cannot be sustained, for the reason that every proposition of law contained in these requests will be found embraced in the charge, which is set out in full in the record. A Circuit Judge is not bound to adopt the precise phraseology in which requests to charge are embodied by counsel. If the propositions of law which they present are substantially presented to the jury, the fact that they are presented in the judge’s own language, and not in the language employed by counsel, affords no ground of exception.

For example, take the first subdivision in this exception, which alleges error on the part of the Circuit Judge in refusing the charge, “that persons not present nor sufficiently near to render assistance are not principals.” Now, the language of the judge in reference to this point was: “In order to be an aider or abettor, the person so aiding and abetting must be present within aiding distance, to aid by counsel, by watching, or by assisting . the person doing the unlawful act.” The proposition of law which the request sought to have impressed upon the jury was, that to constitute one a principal he must be near enough to render some assistance to the person who actually does the unlawful act; and it seems to us that the phraseology employed by the Circuit Judge just as fully, and perhaps a little more so, conveyed the desired idea to the jury as if he had used the identical language in which the request to charge was couched. To say that the person so charged as a principal as being present aiding and abetting, “must be present within aiding distance,” is surely the same thing as to say that “persons not present nor sufficiently near to render assistance are not principals.” From the language used by the Circuit Judge, the jury could not fail to understand that to constitute one, who did not himself do the unlawful act, a principal by reason of the fact that he was aiding and abetting in the performance of such act, he must either be actually present or near enough to render assistance while the act was being done; and this is the real point of the request to'Charge. So it will be found that each one of the several propositions contained in the requests to charge was substantially charged by the Circuit Judge, though, perhaps, not always in the precise terms in which the requests were stated.

The seventh exception, alleging error in allowing the State in the reply to offer evidence in regard to the hole in the chimney of the house of the deceased, not in reply to any new matter brought out by the defence, is not well taken. It appears that in the testimony in chief on the part of the State, some evidence in reference to the hole in the chimney was adduced, and that in the defence a witness, Mag Gleaton, was examined in reference to that matter. When the State came to the reply, the witness, Jones, was examined as to the hole, for the purpose of contradicting the testimony of Mag Gleaton. This was clearly competent, even if it had been objected to at the proper time, about which there seems to be some difference of opinion between the counsel; but we have assumed that the testimony was duly excepted to at the proper time.

The eighth and last exception is in the following language: “Because his honor erred in refusing the motion for a new trial, as to this defendant, upon the ground of insufficiency of evidence, the only positive and unimpeached evidence being that of Robert Tyler, a witness for the State, whose evidence was most improbable, and who, if his evidence was true, was an accomplice, and lacked corroboration.” As far back as the case of The State v. Cardoza (11 S. C., 222), this court said: “It has been so often held that this court cannot set aside the verdict of a jury, in a case in the nature of an action at law, or in a criminal case, on the ground that the verdict was against the evidence, or unsupported by it, that it is not necessary to consider that portion of the appeal that makes such a demand further than to say that it is not competent for this court to say, on appeal in such a case, that a discrepancy between the evidence and the verdict based upon it is so great as to warrant the inference that the jury were influenced by improper considerations. The proper place to examine questions of that nature is at the Circuit, and the decision of the Circuit Court, so long as no error of law is committed by it, is final and conclusive.” This doctrine has been so repeatedly recognized and enforced, that it is not necessary to cite the numerous cases in which it has been recognized and acted on.

The sole question, therefore, for us to consider is, whether the Circuit Judge committed any error of law in refusing the motion for a new trial. No such error has been pointed out to us, and we have not been able to discover any. The testimony of an accomplice is undoubtedly competent, while its credibility is for the jury and not for us. If, therefore, a jury should see fit to convict upon the uncorroborated testimony of an accomplice, we do not see any ground upon which we could interfere without invading the province of the jury, which we are forbidden to do. So if, in such a case, a Circuit Judge should refuse to grant a new trial, we do not see upon what ground we could impute to him error of law in so doing. State v. Scott, 15 S. C., 438. It is true that the proper practice is for the presiding judge to advise the jury not to convict upon the uncorroborated testimony of an accomplice (State v. Wingo, 11 S. C., 275, note; State v. Scott, supra); but we know of no authority which requires that they shall be directed to acquit unless the testimony of the accomplice is corroborated; and if the jury see fit to disregard such advice, then the only remedy is by a motion addressed to the Circuit Judge for a new trial, upon which motion his decision, in the absence of any error of law, “is final and conclusive.” So that, even if the appellant had been convicted upon the uncorroborated testimony of an accomplice, and the Circuit Judge had refused a motion for a new trial, based upon the ground of insufficiency of evidence, we are unable to see by what authority this court could interfere.

While it is true that in the case of The State v. Wingo, supra, a new trial was granted by the Court of Appeals because the defendant appeared to have been convicted upon the uncorroborated testimony, of an accomplice, yet it must be remembered that at that time the Court of Appeals was invested with the power, which has beendenied to us by the constitution, of granting new trials for insufficient evidence. But even in that ease the late Chief Justice Dunkin used this language: “It cannot, therefore, be affirmed that the verdict was illegal, although unsustained by any evidence except that of an accomplice;” showing plainly that the new trial was not granted upon the ground of error of law, but solely on the ground of the insufficiency of the evidence.

In justice, however, to the Circuit Judge, we ought to add that the case for the prosecution did not rest alone upon the uncorroborated testimony of the accomplice, and therefore it cannot properly be said that he has refused a motion to set aside a verdict based alone upon such testimony.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.