State v. Belin , 201 S.C. 490 ( 1943 )

I concur only in so much of the opinion of the Chief Justice as holds that the case should be remanded for a new trial upon the ground that the lower Court erred in failing to charge the law with reference to alibi.

I am unable to agree that there is any evidence in the record which made it incumbent upon the trial Judge to give any instruction to the jury on the law of manslaughter. The testimony given by the defendant himself is positive and specific to the point that on the morning of the homicide, his wife, the deceased, had offered him no violence or provocation whatsoever. He pleaded not guilty, and maintained throughout the trial that he was not at home when the murder was committed. My examination of the record does not disclose any theory upon which the law of manslaughter could properly have been charged.

It appears to be well settled in this jurisdiction that where there is no evidence to sustain a verdict of guilty of a lesser offense than that charged in the bill of indictment, it is not incumbent upon the Court to submit to the jury the question of defendant's guilt of lesser degrees of the crime charged. This rule applies to indictments for murder where the testimony fails to suggest any theory upon which a verdict of manslaughter could rest.

We have held in the recent case of State v. Edwards, 194 S.C. 410,10 S.E.2d 587, 590, that where "there is no evidence whatsoever tending to reduce the crime from murder to manslaughter, then it is not only unnecessary for the trial Judge to charge the jury the law as to manslaughter, but it is improper to do so."

Where a careful examination of the testimony fails to suggest any theory upon which a verdict of manslaughter could rest, a new trial should not be granted for failure to charge upon a phase of the law to which the testimony could not in any reasonable view be made to apply. State v. Adams, 68 S.C. 421, 47 S.E., 676.

Upholding the same doctrine are the cases of State v.Weldon, 89 S.C. 308, 71 S.E., 828; State v. DuRant, 87 S.C. 532,70 S.E., 306; State v. Jones, 133 S.C. 167,130 S.E., 747.

Nor am I able to agree with the disposition made of the first exception, which assigns error to the Court in permitting the witness, F.E. Poston, to testify what Mr. Cockfield, who was an officer, did, following the conversation which he had with a child three years of age. No effort was made by the witness to repeat any statement made by the child. In reply to the solicitor's question: "What did Mr. Cockfield then do?", the witness stated: "He went toward the way the child pointed." I am unable to conclude that by permitting this question and this answer in evidence, it, in effect, allowed a three-year-old child to testify, or that this answer should have been stricken from the record on the Court's own motion. It seems to me that the evidence was competent and admissible.

I must also dissent from the disposition made of the fifth exception, which complains of the manner and mode of cross examination of the defendant by the solicitor. While the cross examination conducted by the solicitor was vigorous, it does not seem to me that it transcended or violated any rule governing a proper cross examination in a criminal case.

In my view, the case should be remanded for a new trial only upon the ground of error on the part of the lower Court in failing to instruct the jury on the law of alibi.

CIRCUIT JUDGE L.D. LIDE, ACTING ASSOCIATE JUSTICE, concurs.