Supreme Court of South Carolina, 1919

State v. Burton

Supreme Court of South Carolina · Decided January 21, 1919 · Watts, Messrs, Hydricic, Fraser, Gage, Ci-Iiee, Gary

98 S.E. 856; 111 S.C. 526; 1919 S.C. LEXIS 66 (South Eastern Reporter)

Counsel

Messrs. Geo. Bell Timmerman and B.V. Chapman , for appellant. Mr. Timmerman cites: As to failure to excuse juror for cause: 90 S.C. 434 . As to the admissibility of dying declarations: 13 S.C. 463 ; 58 S.C. 43 . As to the refusal of trial Judge to charge the following request of defendant: "That the jurors and each of them are required by law to give the prisoner the full benefit of all reasonable doubt, each juror to act on his own doubt and not the doubt of another juror:" 59 S.C. 213 . Mr. Solicitor H.S. Blackwell and Messrs. Blease , for State, respondent, cite: As to failure to excuse juror for cause: 32 S.C. 56 ; vol. I, Code 1912, sec. 4045; 26 S.C. 202 ; 90 S.C. 298 ; 3 Brevard 309. As to the admissibility of dying declarations: 34 S.C. 139 ; 26 S.C. 155 ; 58 S.C. 352 ; 60 S.C. 520 ; 13 S.C. 453 ; 110 S.C. 394 ; 96 S.E. 688 . As to declarations being a part of the res gestae: 47 S.C. 13 ; 103 S.C. 316 ; 110 S.C. 394 ; 96 S.E. 688 . As to his Honor not allowing defendant to testify as to the reputation of deceased for going armed in the community: 78 S.C. 38 . As to the admission of evidence in reply: 79 S.C. 83 . As to the right of the Judge to deliver what counsel for appellant calls a moral lecture: 39 S.C. 51 ; 79 S.C. 82 . As to Judge's charge: 104 S.C. 258 ; 105 S.C. 289 .

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Watts.

(1) The defendant' was tried under an indictment for murder of Langford at the Fall term of the Court of General'Sessions for Newberry county, 1916, before his Honor, *547 Judge Peurifoy, and a jury, and convicted of manslaughter. A motion for a new trial was made and refused, and sentence imposed upon the defendant. After sentence defendant appeals, and by 20 exceptions imputes error, and seeks reversal. These exceptions allege error in presenting the juror No. 17. We think that his Honor was in error in presenting this juror, possibly as he had to sit in the coroner’s jury at the inquest, and it is not good practice to allow a juror to sit as a petit juror in any case where he has been on the grand jury that returned the bill of indictment, or a coroner’s jury, where the return is that the deceased came to his death by the party on trial, or where the juror has been on a panel that resulted in the Court ordering a mistrial, or a new trial has been granted by the Court after verdict rendered; but in the case at bár the presenting of the juror was not prejudicial, as defendant objected to the juror, and by so doing did not exhaust his peremptory challenges.

The jury was completed without the defendant having exhausted bis peremptory challenges, and that excuses any error on the part of his Honor in presenting the juror, and the exceptions complaining of error on the part of his Honor in reference to this juror are overruled.

(2) The next questions to be considered are the exceptions that allege error on the part of His Honor in the admission of evidence as dying declarations. The exceptions complaining of error in this particular are overruled. His Honor had ample authority to rule as he did under numerous decisions of this Court. State v. Johnson, 26 S. C. 155, 1 S. E. 510; State v. Bradley, 34 S. C. 136, 13 S. E. 315; State v. Lee, 58 S. C. 352, 36 S. E. 706; State v. Head, 60 S. C. 520, 39 S. E. 6; State v. Wideman, 96 S. E. 688.

(3) The next questions to be determined are the exceptions which allege the improper admission of evidence as part of the res gestae. These exceptions are overruled under the authorities of State v. Arnold, 47 S. C. 13, 24 S. E. *548 926, 58 Am. St. Rep. 867; State v. Thomas, 103 S. C. 316, 88 S. E. 20; State v. Wideman, supra.

4-7 The next exceptions complain of error in allowing the State to improperly introduce evidence in reply. This was a matter largely in the discretion of the Circuit Judge, and we see no erroneous exercise of that discretion. The safer practice is to ask the trial Judge to be allowed to rebut any new matter that is brought out in reply, but in this case we cannot see that the defendant was prejudiced or deprived of any substantial right. These exceptions are overruled. The other exceptions complain of error on the part of his Honor in charging the jury. Taking the charge in its entirety, we fail to see where the defendant was prejudiced to such an extent as to work reversal. He charged the jury in his own language the principles of law governing the case. All • exceptions are overruled.

Judgment affirmed.

Messrs. Justices Hydricic, Fraser and Gage concur. Mr. Ci-iiee Justice Gary, disqualified.

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