State v. James , 31 S.C. 218 ( 1889 )

The opinion of the court was delivered by

Me. JUSTICE MoIver.

The appellant was indicted jointly with William Scott, Lewis Williams, and Robert Arthur for the murder of his father, Joseph James, and a motion to sever in the trial having been granted at a previous term of the court, the solicitor elected to try appellant first, and at March term, 1888, the appellant was tried and found guilty. Sentence having been passed, defendant appeals upon the several grounds set out in the record. The theory upon which the case for the State rested was that the appellant had hired his three co-defendants to kill his father by offering to pay each of them the sum of two hundred dollars: and the testimony mainly, if not entirely, relied upon to support this theory was the testimony of an admitted accomplice, William Scott, together with various circumstances which, it was claimed, supported or corroborated his testimony.

The testimony tended to show that the deceased was shot at night, just as he stepped out into the front piazza of the house where he and his son, the appellant, were then boarding; that the fatal shot was fired by Lewis Williams, the other two defendants, Scott and Arthur, being present, aiding and abetting, while the appellant was in the back part of the house taking a drink of water; that when the gun fired appellant and Howell, with whom he was boarding, went out on the front piazza, when they heard the exclamation alluded to in the judge’s charge— “Joe, Oh! -Joe, I am shot and killed” — and when asked by Howell what was the matter, deceased replied, “I am shot; they have killed me”; that search was immediately made fon the assassin by Howell and appellant, which, proving to be ineffectual, they hurried back to the old man, who very soon afterwards died.

■ Testimony was also adduced to show that deceased had been, previously shot on three different occasions; that three persons, Bell, Daniels, and Fields, had been indicted and tried therefor; that on each of these trials appellant was a witness for the State; that he had assisted in the arrest of Daniels, who was convicted and sent to the penitentiary, and that the other two persons, Bell and Fields, had been acquitted. One James Hooten, whose character was attacked, was offered as a, witness to show that appellant had attempted to hire him to kill his father, and one Hailey, whose character was likewise attacked, and one McKay, who was not attacked, were offered to corroborate ITooten’s testimony, by showing that they were asked by appellant to carry messages to Hooten, though McKay does not say what was the purport of the message he was asked to carry, as he declined to hear any message at all. There was much other testirnonj^, all of which is fully set out in the “Case,” but the foregoing brief statement is sufficient to enable us to consider the several objections to the judge’s charge.

The first ground of appeal is in the following words : “Because his honor erred in admitting in evidence the declarations of Joseph James, deceased, to the witness, D. C. DuBose, four weeks before his death.” On turning to the “Case” we find that when the witness, DuBose, was on the stand he was asked the following question : “ ‘Shortly before the old man was killed, do you know', from what you - heard either of them say, whether the relations between the old man and his son were friendly or hostile ?’ Objected to. Objection overruled. Exception taken. ‘A. From what I heard Mr. Joe James, senior, say, they were not friendly. He said that to me about four weeks before he was killed.’ ‘Q. Could you state whether he had hostile feelings or friendly feelings ?’ ‘A. My opinion was’— (interrupted.) Defendant’s counsel objects to the opinions or impressions made on the mind of the witness by the declarations of deceased. Objection sustained. By the Court: ‘My ruling is, that an expression of hostility is an act, not,a declaration. I have not allowed declarations to be testified to.’ By the Court: (To witness.) ‘If you heard him express hostile feelings towards his son, state it.’ ‘A. I did, sir.’ Defendant’s counsel asked that his exceptions be noted to all testimony as to expressions of hostility between the father and the son, and to all declarations of hostility.”

From this extract from the “Case,” showing what occurred at the trial.in reference to the testimony objected to, it is very manifest that the Circuit Judge drew a distinction, whether well founded or not is not now the question, between expressions of hostility and declarations which the witness heard. This is clear from what occurred when Huggins, who was examined immediately before DuBose, was on the stand. For when Huggins was asked as to the relations between the old man and his son, and he replied that he could not tell, except what the old man told him five days before he was killed, he was not allowed to say what the old man told him, the court ruling that, in reply to the evidence adduced on the other side, to the effect that father and son were upon good terms, the witness might prove expressions of hostility, but could not be allowed to prove what wo-ds were used by the old man showing such hostility — could not prove the old man’s declarations. Now, while the exception noted at the trial does embrace both points — expressions of hostility, as well as declarations — it will be observed that the first ground of appeal, which is all that we can properly consider, only imputes error to the Circuit Judge in excluding the declarations of the deceased, which, as we have seen, were expressly excluded.

But as this is merely technical, we would not be disposed, in a case of this gravity, to rest our decision upon it. Whether the relations between two persons are friendly or otherwise, may he testified to by a witness who has had an opportunity of observing the intercourse between them; for,although such testimony may, to a certain extent at least, be regarded merely as the opinion of the witness, yet it seems to fall under the exception to the general rule excluding opinions of witnesses, which exception, as is said in Commonwealth v. Sturtivant (117 Mass., 122, S. C. 19 Am. Rep., 401), cited with approval in Jones v. Fuller, 19 S. C., 68, “is not confined to the evidence of experts, testifying on subjects requiring special knowledge, skill, or learning, but includes the evidence of common observers, testifying to the results of their observation made at the time in regard to common appearances or facts, and a condition of things which cannot be reproduced and made palpable to a. jury.” Amongst the numerous illustrations given in that case, and the note thereto, may be found the following : “So those who have observed the relations and conduct of two persons to each other, may testify whether, in their opinion, one was attached to the other,” McKee v. Nelson (4 Cow., 355), or. “as to the degree of affection entertained by a wife for her husband, in an action of crim. con.,” Trelawny v. Colman, 2 Stark., 191. It seems to us that the true rule is, that a witness, who has had an opportunity of observing the intercourse between two persons, may be asked the general question, whether the parties are friendly or otherwise, although his answer can be nothing more than an expression of his opinion, the correctness of which may be tested by a cross-examination as to the grounds upon which he bases his opinion ; yet when it appears that he speaks only from what he has heard one or the other say to himself or to third persons, it is nothing more than hearsay, and should be excluded upon that ground.

In all the other grounds of appeal, exception is taken to various portions of the Circuit Judge’s charge to the jury, as being in violation of section 26, art. IV., of the Constitution, which is in these words: “Judges shall not charge juries in respect to matters of fact, hut may state the testimony and declare the law.” For a proper understanding of the ease, it will be necessary that the charge of the Circuit Judge, together with the grounds of appeal, be fully set out by the reporter, although we do not deem it either necessary or desirable to consider specifically each of these grounds.

This imperative mandate of the constitution it is our plain duty to enforce, without regard to the consequences which may’ensue in any particular case. Whether this is a wise or an unwise provision, we have neither the power nor the disposition to consider. It is enough for us to know that the people, in their sovereign capacity, have declared that judges “shall not charge juries in respect to matters of fact,” and the only question which we have the power to consider is whether this imperative mandate has been violated in a given case. The first inquiry which naturally arises is, wliat is the meaning and extent of the prohibition— judges shall not charge juries in respect to matters of fact? If that language stood alone, then the inference would he, that a judge, in charging a jury, should not say anything about the facts, for the broad terms used — in respect to mattei’s of fact — would certainly warrant, if they did not require, the inference, that a judge was not at liberty even to speak of the facts; not at liberty to speak in reference to, or “m respect” to, them. But as that was not the intention, additional words are found in the clause •which expressly permit the judge to state the testimony.

So that the practical inquiry is, what is the extent of this permission, following, as it does, and qualifying the previous absolute prohibition, which, without such qualification, would forbid any allusion to the testimony. To state the testimony certainly does not mean to discuss the testimony, for, to say nothing of the marked difference in the signification of these two words, such a construction would bring the latter part of the clause into direct conflict with the preceding imperative prohibition; for to discuss the testimony would certainly be charging, in respect to matters of fact, the very thing which is expressly forbidden. What, then, is the extent of the permission to state the testimony ? Is it confined to a mere repetition of the testimony, as it fell from the lips of the witnesses, or does it extend to an arrangement of the testimony in the order in which it applies to the several questions of fact arising in the case, and, as thus arranged, laid before the jury by the judge? Ever since the cases of The State v. Green (5 S. C., 65), and Redding v. Railroad Company (Ibid., 67), followed by State v. White (15 Id., 381), down to the very recent case of State v. Addy (28 Id., 4), the latter construction has been held the correct one; but it has been uniformly held that in thus laying the testimony before the jury, in its proper order, the judge must be careful to avoid expressing, or even intimating, any opinion as to the facts, and that if he does so, whether intentionally or unintentionally, a new trial must be granted. Under our constitution, the jury are the exclusive judges of the facts, and the true meaning and real object of the section of the constituion above quoted is that they must be left to form their own judgment, unbiassed by any expressions, or even intimations, of opinion from the judge.

Looking at the charge in this case under the light of these principles, it is impossible for us to resist the conclusion, that the jury could not fail to see that his honor had very decided convictions against the prisoner upon many, if not most, of the material questions of fact in the case. This impression was left upon our minds on the first reading of the charge, and a careful examination of it has only served to deepen that impression. Whether the charge be considered as a whole, or the several points specified in the exceptions be considered separately, we think the jury were bound to see the leaning of the judge’s mind. The declaration in the outset, that if the prisoner hired another to kill his father, none of that father’s blood should rest on his hands, and that he had no reason to suppose that any one of the jury were disposed to differ from him in that determination, was well calculated to convey the impression that the blood of the deceased rested upon the head of the prisoner. He was the only person then on trial, and if the responsibility for that bloody deed rested neither upon the judge nor the jury, where else was it to rest, except upon the prisoner ?

Then the manner in which the testimony adduced to corroborate the testimony of William Scott was presented to the jury, and the remarks made as to the motive for the killing, excluding all idea of the motive being robbery, and presenting in the strongest light the idea that it was for the bribe alleged to have been offered by the prisoner to any one who would take his father’s life; the discussion of the testimony of Hooten and the evidence relied on to corroborate him, especially in connection with the suggestion, that he was just such a person to whom such an infamous offer would likely be made; the suggestion that the reward offered by the prisoner for the discovery of the murderer of his father might have been prompted by other than the ostensible motive; the intimation that the prisoner might have put the officers of the State upon the wrong track when they were trying to find out who had shot the deceased on previous occasions; the comments on the conduct of the prisoner after his father was killed; these and other portions of the charge, which it is deemed unnecessary to consider specifically, could not fail to indicate to tbe jury the opinion of his honor.

But, in addition to this, when the judge, in commenting on the testimony adduced to show that the prisoner had been active in the prosecution of others who had previously shot his father, he explicitly instructed the jury that they could draw no inference favorable to the prisoner from such testimony — that they could-draw no inference from the fact, that the prisoner had testified as a witness for the State on the trial of these parties, and had assisted in the arrest of Daniels, who was convicted — it seems to us clear that he plainly invaded the province of the jury, and forbid them from doing what it was their exclusive province to do — draw inferences from the testimony adduced. The jury being the sole judges of the facts, it is for them, and not for the judge, to say whether any inferences, and, if so, what, shall be drawn from the testimony, and it is a plain violation of the constitutional provision above referred to for the judge to instruct the jury that no inference can be drawn from any given portion of the testimony. If it were otherwise, then it would be practicable for a judge, in effect, to dictate the verdict.

Without going into any further discussion of the charge, it seems to us clear, that, whether the charge be considered as a whole, or as to those portions of it specifically mentioned in the exceptions, it was in violation of the provision of the constitution; and for this reason we are compelled to grant a new trial. We desire to say, however, that we are not to be regarded as either expressing or even intimating any opinion as to the correctness .or incorrectness of the verdict. That is a question which it is beyond our province to consider, and has, therefore, not been considered. Our action, in granting a new trial for the errors of law indicated, is not entitled to have, and should not have, the slightest influence, either one way or the other, upon the next jury called upon to pass on the facts of the case, as they may then be presented to them.

The judgment of this court is, that the judgment of the Circuit Court be reversed, solely on the grounds indicated, and that the case be remanded to that court for a new trial.