State v. Cooler , 112 S.C. 95 ( 1919 )

April 8, 1919. The opinion of the Court was delivered by The appellants were convicted of murder and sentenced to electrocution. There are 21 exceptions. Several of the exceptions raise the same questions, and, as they have not been separately stated, they need not be separately considered.

1. The first question in logical order refers to the stenographic report in the case. The stenographer did not take notes of the examination of jurors upon their voir dire, and this failure is a subject of appeal. The selection of the jury is a very important part of the trial. They are required to take full stenographic notes of all proceedings. The examination of jurors is an important part of the proceedings. The essential facts, however, are before the Court, and this is not reversible error. The exception that raises this question cannot be sustained.

2. One of the jurors, named Papham, was sworn on hisvoir dire and accepted as a juror. It seems that the jury was completed at the afternoon session, but no evidence was offered until the next morning. When the Court was opened, the next morning, counsel for the appellant, Cooler, called attention of the Court to the fact that this juror had expressed an opinion and examined a witness who testified that this juror had expressed the opinion that this appellant was guilty. His Honor held that the juror was already accepted and it was too late to withdraw him from the jury and substitute another. At this stage of the case, the presiding Judge certainly had the power to withdraw the juror, at the request of the defendant, and substitute another, and it was error not to do so.

3. The appellant raises the question of the constitutionality of the act creating the Fourteenth Circuit (Act February 14, 1916 [29 St. at Large, p. 688]). In so far as this case is concerned, the case of State v.Mappus, 107 S.C. 345, 92 S.E. 1053, is conclusive, and this exception is overruled.

4. The defendant, Cooler, asked the presiding Judge to charge the jury that it must base its findings exclusively on the evidence taken in open Court. The presiding Judge thought, doubtless, that he had included that request in his general charge. Inasmuch as the bias of one of the jurors had been brought in question, this request should have been charged as requested by the defendant.

5. The appellant, Cooler, complains of the admission of statements made by his codefendant, Davis, in Court and out of Court. In both cases his Honor was correct. Davis was a defendant, and the State could prove what Davis said about the case. His Honor properly cautioned the jury that the statements were evidence only against Davis. The whole statement must come out if any part is given. The statement must be received, as it was received, in this case, with the caution that it only affected Davis.

As to the statement in Court: We say Davis was a witness, and had the right to make his statement, even if it included a statement that his codefendant had done the killing. We have been cited to no authority, and we know of none, that holds to the contrary.

6. The only other point that need be considered in this case is the effect of opprobrious language. It is too well settled in this State to require the citation of authority that language, no matter how opprobrious, does not justify an assault or furnish legal provocation. To discuss this further would involve the facts, and, as this case must go back for a new trial, the impropriety is manifest.

The judgment is reversed, and a new trial ordered.

MESSRS. JUSTICES HYDRICK, WATTS and GAGE concur.

MR. CHIEF JUSTICE GARY did not sit.