Supreme Court of South Carolina, 1928

State v. Fleming

Supreme Court of South Carolina · Decided December 1, 1928 · Watts, Messrs, Cothran, Blease, Stabler, Carter

145 S.E. 632; 148 S.C. 64; 146 S.E. 632; 1928 S.C. LEXIS 177 (South Eastern Reporter)

Counsel

Messrs. George Warren, Chas. B. Searson, S.G. Mayfield, John B. Nix , and Walter W. Wright , for appellant, cite: Leading questions not allowed: Wig. On Ev. (2d Ed.) Secs. 769, 771, 780. Court should carefully inquire into prejudicial atmosphere of trial here: 164 U.S. 546 . Use of juror to compare size of deceased and defendant unfair, reversible error: Sec. 18, Ar. 1, Const.; 69 So., 1001. Invidious comparisons by Solicitor of accused prejudicial: 111 So., 763 ; 112 So., 83; 212 N.W., 757 . Fact that defense counsel committed impropriety in making remarks is no excuse for prosecution to make similar remarks: 148 Cal., 334 ; 117 Cal., 647; 14 Ga. A., 568; 247 Ill., 130 ; 115 Ga. 715 ; 113 Ga. 1062 ; 10 Ga. A., 805. Such statements warrant reversal: 55 App. Div. N.Y., 373; 59 Colo., 280 ; 28 Ky. L., 146; 88 Mich., 456 ; 8 Okla. 226 ; 41 Tex., 21 ; 156 N.E., 310 . Charge on self defense error here: 164 U.S. 546 . Improper for Grand Juror to appear as chief prosecuting witness: 3 Wend., 313; 6 Wend., 386; Wharton Cr. Law, 120; Barr's Trial, 38. Offensive words must be considered in determining who started conflict: 164 U.S. 546 . Charging defendant with carrying concealed weapon, prejudicial: 51 Ore., 136 . As to self defense: 94 S.C. 401 ; 13 S.C. 464 ; 73 S.C. 282 ; 13 R.C.L., 122; 30 C.J., 205; 90 S.C. 293 ; 113 S.E., 617 ; 1 Marr's Cr. Jur. of La., (2d Ed.), Secs. 57, 127; 38 La. Ann., 536; 120 La., 187 ; 45 La. Ann., 569; 104 La., 580 ; 30 Ann. (La.), 1323; 32 Ann. (La.), 1086; 26 A., 582; 5 A.P., 489; 50 A.P., 92; 46 A.P., 1524; 45 A., 14 . Solicitor Randolph Murdaugh , for respondent, cites: Improper conduct on part of attorney not reversible error if Court directs jury to disregard same: 75 S.C. 342 . As to admissibility of dying declaration: 43 S.C. 52 ; 56 S.C. 360 ; 58 S.C. 41 ; 79 S.C. 229 ; 80 S.C. 332 ; 87 S.C. 551 ; 93 S.C. 502 ; 43 S.C. 148 ; 134 S.C. 361 ; 26 S.C. 152 ; 2 Hill, 619; 58 S.C. 352 . Same, question for Court to decide: 87 S.C. 550 ; 79 S.C. 63 ; 111 S.C. 356 ; 80 S.C. 332 . Disqualification of single Grand Juror will not invalidate an indictment unless it appears that Grand Jury was composed of only twelve men: 56 S.C. 379 ; 79 S.E., 116 ; 64 S.C. 194 .

Opinion of the Court

The opinion of the Court was delivered by

Mr. Chief Justice Watts.

At the fall term of Court of General Sessions for Hampton County, the grand jury rendered a true bill on an indictment presented by Hon. Randolph Murdaugh, Solicitor of the Fourteenth Circuit, charging the defendant, Robert T. Fleming, with the murder of J. F. Phillips.

The case was tried before Pión. P. F. Henderson, Special Judge, and a jury at Hampton Court House; the jury found the defendant guilty of murder with recommendation to mercy, and thereupon the defendant was sentenced by his Honor to imprisonment for the period of his natural life in the state penitentiary or on the public works of Hampton County. From said sentence and the judgment of the Court entered thereon, the defendant duly gave notice of intention to appeal to the Supreme Court.

The appellants have 21' exceptions. We do not consider that all should be considered, but only those exceptions that raise the objection that'—-

“(c) Juror stood up in jury box during trial of case; made to stand by the side of defendant for purpose of comparing size and weight of juror with that of defendant.”

Exception 4 is:

“4. The defendant (a) was greatly prejudiced and (b) did not receive a fair trial because the Solicitor prejudiced the jury against him by calling upon juror E. W. Carter to stand up to be measured by the side of the defendant, over the objection of defendant’s attorney, and asking the following questions:

*68 “ ‘Q. You mind standing up, please, sir?

“ ‘A. Not a bit.

“‘Mr. Murdaugh: Will you stand up, Mr. Foreman. (Mr. Carter) stand up right by him. (The defendant, the Foreman of the jury standing up side by side.)

“ ‘Mr. Mayfield: Your Honor, please, I submit the Solicitor has no right to take the Foreman (juror) and stand him up by the side of the defendant, and we sincerely object on the part of the defendant.

“ ‘The Court: I am of the opinion that it would have been much better to have taken someone other than the Foreman (the juror), and if there had been any objection on the part of counsel for defense, I would have stopped the procedure.

“ ‘Mr. Mayfield: We did not know what he was going to do.

“ ‘The Court: The Court did not know, either.

“ ‘Mr. Mayfield: We wish to enter our protest and objection to it.’ ”

This exception must be sustained. The Solicitor made the juror an exhibit and part of the, evidence in the case. It was highly prejudicial to the defendant; the Court did not cure it when he admonished the Solicitor; the damage to the defendant had been done and could not be removed.

The other exceptions are not considered. Exception 4 is sustained, and a new trial granted.

Messrs. Justices Cothran, BlEase, Stabler and Carter concur.

Concurring Opinion

Mr. Justice Carter

(concurring) : Knowing that the Solicitor who prosecuted this case is always desirous of being absolutely fair in every phase of his conduct, I am satisfied that when he called upon the formean of the jury to stand up, and caused the defendant to stand beside the foreman, he had no intention of prejudicing *69 the rights of the defendant. In fact, I think that such a purpose was foreign to his mind but since by this act the foreman was made an exhibit in the case, though unintentionally, the act constituted reversible error.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.