State v. Pendarvis , 88 S.C. 548 ( 1911 )

May 4, 1911. The opinion of the Court was delivered by The following statement appears in the record:

"The appellant was tried before Hon. B.H. Moss, special Circuit Judge, at the Fall term of the Circuit Court for Dorchester county in the year 1910, for murder.

"In exception one, are fully set out the circumstances, surrounding the presenting, acceptance; voir dire examination and rejection of the juror, West O. Hutto.

"The jury rendered a verdict of: `Guilty of manslaughter;' whereupon he was sentenced to twelve years at hard labor in the State penitentiary."

The defendant appealed upon exceptions, which will be reported.

First Exception: The case of the State v. Harding,70 S.C. 395, 50 S.E. 11, shows, that this exception can not be sustained. In that case the rule is thus stated:

"The rule that the solicitor, should exercise the State's right to challenge, before the juror is accepted by the defendant, has no statutory sanction, but is based entirely on the practice of the Court. State v. Haines, 36 S.C. 504,15 S.E. 555. The defendant's right of challenge is a right of rejection not of selection. State v. Kelley, 46 S.C. 55,24 S.E. 60. It is, therefore, manifest, that a verdict should not be set aside, for a mere technical violation of the rule, which has not impaired the defendant's right of challenge, or any other substantial right." It is further said that "the discretion of the Circuit Judge, in adjusting such matters, will not be disturbed, unless abuse of discretion clearly appears."

Second Exception: The record shows that this question arose as follows:

"Did you make an examination of John Pendarvis, the defendant, soon after this trouble? Yes, sir. Do you remember when it was? I do not remember the date, it was on Saturday evening. It was the same of the difficulty? Yes, sir. When was it? About night. In jail? Yes, sir. Tell us what you found when you examined him?

"Mr. Hildebrand: That question is not competent, and we object, that would be a self-serving declaration, the doctor cannot tell, what condition he found this man in, so long a time after this thing happened.

"His Honor: I think the objection should be sustained. You could have some one to corroborate. You could put up the defendant, and let the doctor corroborate him."

It did not appear, that the wounds were inflicted, by the defendant. The testimony tended to show, that the life of the defendant was endangered by the wounds; and, it should have been left to the jury to find, whether they were self-inflicted.

This exception is sustained.

Third Exception: The question presented by this exception, arose as follows:

"During the argument of the solicitor, the following language was used: `I am not going to comment on the fact, that the defendant did not take the stand, but I have often thought, that if I were being tried, on a charge like this, that I — '

"Mr. Wolfe: We object, your Honor.

"His Honor: I think you are right, Mr. Wolfe. You had better not comment on that, Mr. Solicitor.

"Mr. Hildebrand: I guess that hurt.

"Mr. Wolfe: No, sir, it did not hurt. I ask the stenographer to note the remark — `it hurts.'"

While the remark made by the solicitor, was not proper, it is not reasonable to suppose, that it may have influenced the verdict.

Fourth Exception: This exception cannot be sustained, for the reason that his Honor, the presiding Judge, merely announced a proposition of law, and there are no words showing that he undertook to say, how the difficulty occurred.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.