State v. Merriman , 34 S.C. 16 ( 1891 )

The opinion of the court was delivered by

Mr. Jostioe MoIver.

The appellant was indicted for and convicted of the murder of one A. G. Douglass, and judgment having been rendered in accordance with the verdict, he now ap peals to this court upon various grounds set out in the record. These grounds are so numerous — sixty-one in number — and many of them being mere repetitions, in different phraseology, of the same positions, it is not necessary to consider them seriatim. We propose, therefore, to confine ourselves to the several positions, as stated in the argument of counsel for appellant, relied on to sustain this appeal, as they in fact really embrace all the points presented by the grounds of appeal.

The first point raises the question as to whether there was error in overruling the challenges to the array of both the grand and petit juries. It seems that the case was first called for trial before his honor, Judge Norton, when the counsel for the defence challenged the array of the grand and petit juries, upon grounds which will hereinafter be stated, and these challenges were overruled, whereupon the case was continued.’ When the case was called for trial at the next term, before his honor, Judge Wallace, the defendant renewed his challenge to the array of the grand jury, on the same grounds presented to Judge Norton, and also challenged the array of the petit jury upon grounds which will hereinafter be stated, which were practically the same as those presented to Judge Norton. The ruling of Judge Wallace is stated in the “Case” in these words: “That as the same questions had been presented for the consideration of Judge Norton at the preceding term, and that as Judge Norton had ruled upon them, he would not disturb that ruling.”

Before proceeding to consider the validity of the challenges to the array of the grand and petit juries, we will dispose of a point raised by one or more of the exceptions, imputing error to Judge Wallace in holding that he was bound by the previous ruling of Judge Norton. We do not understand that Judge Wallace held that he was bound by the previous ruling of Judge Norton; and for this reason we have set out in haee verba the ruling of Judge Wallace as it appears in the “Case.” He did not say that he could not disturb the ruling of Judge Norton, but that he would not do so, and therefore it is not correct to say that Judge Wallace ruled that he had no power to review or reverse the previous ruling of Judge Norton, but all that his language warrants is that he did not feel disposed to do so. What was his reason is not stated; whether it was because he thought Judge Norton’s ruling right, or whether because he felt bound by it, we have no right to conjecture. • But after all the real question is as to the correctness of the ruling ; and it is wholly immaterial to inquire into his reasons for making it.

The grounds upon which the challenge to the array of the grand jury rest are substantially as follows : 1st. Because all the members of the board of jury commissioners were not present at the time the jury list was prepared and at the time the grand jury which found this bill was drawn, but only the jury commissioner and the chairman of the board of county commissioners, together with one D. M. Barrentine, who it seems was in the habit of acting as the clerk or deputy of the county auditor, were present, the county auditor himself not being present. 2nd. Because the grand jury was not drawn openly and publicly, but was drawn in the clerk’s office with locked and closed doors, whereby the public was deprived of the right to be present and witness the drawing. 3rd. Because when the defendant by his attorneys applied to the jury commissioner for an inspection of the jury list and a copy of the same, the application was refused. The grounds of the challenge to the array of the petit jury were ' the same as the first two above stated, and in addition thereto the following: 3rd. Because the attorneys for defendant were denied the privilege of being present and witnessing the drawing of the jury. 4th. Because after the jury was drawn the jury commissioners declined to answer the inquiry of the attorneys for defendant, as to whether any of the names drawn were rejected. Tbe return of the jury commissioners substantially admitted all the facts upon which the challenges were based, but stated that although Barrentine was present, he did not participate either in preparing the list or in the drawing, further than to furnish'the names of persons liable to jury duty from the auditor’s books. They also admitted that one person whose name was drawn was rejected, because his habits were such as to unfit him for jury duty ; and they justified their course in locking the doors of the clerk’s office while drawing the jury, by advice of the former solicitor to that effect.

1 The first question to be considered is whether the fact that one of the three members of the board of jury commissioners was not present affords any sufficient ground for sustaining the challenge to the array. This question is • disposed of by the express terms of the statute. Section 2234 of General Statutes, after providing for the appointment of a jury commissioner, declares that he, . “with the county auditor and chairman of the board of county commissioners, or a majority of the same, shall constitute a board of jury commissioners,” &c. It is very plain, therefore, that any two of those officers may perform any of the duties of the board. The fact that Barrentine was present cannot affect the question, as he did not participate in the preparation of the list or drawing further than to furnish the names from the auditor’s books, which seem to have been in his possession and under his control.

2 The fact that the jury was not drawn “openly and publicly” is not sufficient to sustain the challenge, for we are not aware of any statute which requires this to be done. Formerly the law did require juries to be drawn in open court, under the supervision of the presiding judge, which necessarily involved the idea of publicity ; but that is not now the law. On the contrary, section 2248 of the General Statutes simply provides that jurors shall be drawn “in the presence of the clerk of the court and the sheriff of the county,” and when those are present, as they appear to have been in this case, we see no warrant for saying that the exclusion of the general public will vitiate the panel. Indeed, since the present law requires that the board of jury commissioners shall exclude from the list persons who are not, in their judgment, qualified to perform the high and responsible duty of jurors, or who are not of “good moral character” and “sound judgment,” which was not the case formerly, there may have been a good reason for omitting from the present statute everything which involved the idea that this important duty should be performed publicly; especially as the statute requires that the drawing should be in the presence of the clerk and sheriff, two trusted officials, who might be regarded as sufficiently representing the general public, for they are not members of the board, but are simply required to be present. If the public generally were entitled to be present, it might greatly embarrass the board of jury commissioners in canvassing the fitness of any person whose name might be drawn; and that seems to have been one of the reasons assigned for excluding the public upon this occasion, At all events, not having been cited to any law which requires publicity, we cannot undertake to say that there was any error in this respect. •

3 So, too, as to the 3rd ground. We are not aware of any lawr which requires the jury commissioners either to furnish a copy of the jury list or submit it for the inspection of any person who chooses to ask for it. This disposes of all the grounds upon which the challenge to the array of the grand jury rests, as well as the first two upon which the challenge to the array of the petit jury is based. The third ground is disposed of by what we have said above in regard to the alleged necessity for publicity. There is no law, so far as we are informed, which gives either party to a cause, or his attorney, the right to be present and witness the drawing of the jury, and hence there was no error in denying such alleged right.

4 So, too, as to the fourth ground upon which the challenge to-the array of the petit jury was rested. There is no law which requires the jury commissioners to give information as to who they have rejected as jurors, and it might be prejudicial to the interests of justice to require them to do so. At all events, these officers have been invested with the power to determine finally, without appeal, whether a given person is a suitable person to be a juror, and hence we see no reason why they should be required to disclose their action in a matter of such delicacy. As public officers they are supposed to enjoy the confidence of the public, and their action is and perhaps ought to be final.

5 The second question presented by appellant’s counsel is whether there was error in overruling his challenge to the special venire. It seems that when the challenges to the array were overruled, the solicitor moved that a special venire be issued to fill up the panel, as several of the thirty-six originally drawn were either absent or excused. This order was granted, and the requisite number having been drawn and summoned, the defendant challenged the array so drawn upon two grounds, substantially as follows : 1st. Because there were in fact only one hundred and forty-eight names placed in the tales box, while the law required that there should be one hundred and fifty. 2nd. Because three of the persons whose names were found in that box were exempt from jury duty. This challenge was likewise overruled. We do not think that either of these grounds can be sustained. It is true that section 2237 (Gen. Stat.), as amended by the act of 1886 (19 Stat., 599), does require the jury commissioners to place in the tales box “the names of one hundred and fifty persons qualified by law to serve as jurors, who reside within seven miles from the court house, from which shall be drawn jurors to supply deficiencies arising from any cause or emergency during the sitting of the courtbut there is no provision that the failure to comply literally with this requirement will invalidate a panel composed in part of persons drawn from the tales box. It seems that in this instance the board of jury commissioners intended to comply literally with the law, for there were one hundred and fifty slips of paper with names written thereon placed in the box, but it happened that, by inadvertence probably, the names of two of those persons appeared on two slips of paper, so that in fact only the names of one hundred and forty-eight persons were in the box. We do not think, therefore, that the first ground upon which the challenge rested can be sustained.

Nor can the second ground be sustained for the same reason, and for the additional reason that while the persons named may have been exempt from jury duty, it does not appear t.hat they were not “qualified by law to serve as jurors.” Their exemption was a personal privilege which they might or might not claim, but it did not disqualify them as jurors.

6 But in addition to this, “inasmuch as there was not only no necessity, but also no authority,” for issuing a writ of venire to summon the additional jurors drawn from the tales box, as was held in State v. Hill (19 S. C., 435), we do not see any basis for the challenge to the array. It seems to us that the objection should more properly be made when any juror whose name had been drawn from the tales box wras presented ; and it does not appear from the record before us that any such juror was presented to the prisoner in this case. In no view of the case, then, could this challenge have been sustained.

7 The third and fourth questions may be considered together, as they both involve the propriety of the ruling of the Circuit Judge as to the competency of certain jurors examined upon their voir dire. The question whether a juror examined upon his voir dire appears to the court to be indifferent, is a question addressed exclusively to the Circuit Court, where, as in this case, it involves a mere matter of fact. By the express terms of the statute it is for that court to determine whether the facts disclosed by such examination are such as would render a juror indifferent or otherwise; and this has been repeatedly held by this court. State v. Williams, 31 S. C., 257, and the cases there cited.

8 The complaint that the Circuit Judge failed to ask certain jurors examined on their voir dire whether they were related to the deceased is not well founded. The statute provides that the court shall, on motion of either party, examine a juror as to whether he is related to either party, &c., and if no motion was made to the court to examine a given' juror as to whether he was related to the deceased (and there was no such motion in this case), the omission to ask such question cannot be assigned as error.

9 The fact that one of the jurors presented to the prisoner was exempt from jury duty, furnished no ground of exception. The exemption is a privilege personal to the juror, and may or may not be claimed as he may desire. It certainly does not disqualify him from jury duty.

10 11 The objection that the judge erred in rejecting the juror Fletcher because of his relationship to the accused within the degrees stated in the record, cannot be sustained. We aVe not aware of any statute fixing the degrees either of consanguinity or affinity within which a juror is disqualified; and it must therefore be left to the Circuit Judge to determine whether the fact that the juror’s father and the grandfather of the accused were brothers, was such a relationship as would be likely to render the juror not indifferent in this case. And we think that the Circuit Judge was fully justified in his ruling by the analogy drawn from the case of State v. McQuaige (5 S. C., 429), as well as the act of 1887 (19 Stat., 851), declaring the degrees of affinity or consanguinity within which a judicial officer should be disqualified. To avoid misapprehension, we desire to state that although the “Case” as prepared for argument here did not show that the appellant had exhausted his peremptory challenges, yet the solicitor at the hearing very properly admitted that such was the fact, and hence it was necessary for us to consider the several objections to the jurors.

12 We will next proceed to consider the several objections to the competency of the testimony. The witness, A. J. Smith, after having testified in behalf of the State as to having followed what seemed to be a trail (as he termed it) from the place where the dead body was found to the bushes behind which, as the prosecution alleged, the prisoner stood when he fired the fatal shot, was asked first on the cross-examination who were present at the time, and he gave the names of several persons. He was then asked: “Who instructed you to look up the trails and tracks and so forth?” and also, “Who pointed out to you the trail?” to both of which questions the solicitor objected and the objection was sustained. We do not see any error of law in this. These questions seem to have been irrelevant, and in answering them the witness would have to speak from hearsay. If counsel deemed it important to prove who directed the witness to look up the trail and who. pointed it out to him, having been furnished with the names of the persons who were present, he could have examined them, and not ask the witness to say what others had told him.

13 The objection to the questions propounded to James Pigg, a witness for the defence, on his cross-examination cannot be sustained. We understand the rule to be that a witness on his cross examination may be asked questions which, though irrelevant to the issue on trial, may yet tend to discredit him before the jury, the qualification being that the witness may decline to answer, and that if he does answer, his answer must be accepted and cannot b.e contradicted by other witnesses. 1 Grreenl. Evid., §§ 446, 419. We do not think that there was any error in permitting the solicitor to ask this witness on his cross-examination whether he had ever been convicted of larceny.

14 The objection to the competency of certain questions asked Elisha McDugald, a witness for the defence, on his cross-examination, was not well taken. JTe was asked whether he had not said to one Jack Smith that the deceased could be better spared than any other man in the community, and the question was ruled competent, upon the ground that its purpose was to show bias in the mind of the witness against the deceased. This ruling is sustained by the following statement of the rule in this respect in 1 Greenleaf on Evidence, section 446, where, in speaking of the use and value of a cross-examination, that writer says : “By means of it the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, &c., * * are all fully investigated and ascertained and submitted to the consideration of the jury, before whom he has testified, and who have thus had an opportunity of observing his demeanor and determining the just weight and value of his testimony.”

15 It is very obvious that the exceptions to the testimony of J. C. Coker are unfounded, if for no other reason, because the questions objected to were answered in the negative, and hence could have no effect either one way or the other. So, too, as to the objection to the testimony of J. E. Bone elicited on cross-examination. While it seems to have been irrelevant, we are unable to discover any ground upon which it can be regarded as incompetent. Another witness for the defence, Hugh Brown, was asked on cross-examination whether he had not told Jack Freeman that when he heard the report of the guns that he knew that the deceased, Douglass, was dead, which question was objected to and the objection was overruled. But as the answer was a denial that he had said so to Freeman, we do not see the necessity of considering the matter further.

16 We do not think there is anything in the exception based upon the refusal of the court of defendant’s motion to strike out the testimony of A. T. Kelly, upon the ground that it-appedred from his cross-examination that he “was not a licensed physician, and not an expert.” But it also appeared that this witness had taken a course of lectures at a college (medical, we presume), and had been a practising physician for about ten years. It does not seem to us that it will do to say that such a person is not an expert, simply because he has not been regularly licensed to practise medicine. But waiving this, his testimony was wholly immaterial — in fact, amounted to nothing whatever, except that he said, what was an undisputed fact, fully proved by another witness, who was beyond all question an expert, that in his opinion the wounds found upon the body of deceased would produce instant death.

17 The objection to the testimony of Dr. Redfearn is that he was allowed to give an opinion in respect to matters as to which he was not an expert. The first question objected to was whether in his opinion the body of the deceased had been in a different position from that in which he found it, and had been moved to that position. The solicitor said to the Court: “I want him to state, as his medical opinion, whether that body was moved after the hemorrhage, from the appearance of the blood inside the chest.” The Court then framed the question in the following language: “Can you tell that, doctor, from the quantity of blood in the chest?” To this the witness answered : ‘T think if the body had been moved, it is likely there would have been some hemorrhage at the mouth and nose,” and then proceeded to give his reasons for such opinion, based upon the condition in which he found the lungs and bronchial tubes, &c. It is very obvious from this statement that the witness was called upon to give and did give his opinion as a medical expert, stating the facts which his examination of the body revealed, upon which his opinion was based. We do not see how it is possible to doubt that such testimony was competent.

The next question objected to was designed to elicit from the witness his opinion as to the position in which the gun must have been to produce the wounds found on the body. The Court, after instructing the witness first to state ths facts upon which he based his opinion, and then give his opinion, overruled the objection. The witness, who was called on to make the post mortem., seems to have made a very intelligent and careful examination, and proceeded to state the facts which such examination revealed, and then the opinion which he had framed from such facts, to the effect that the muzzle of the gun must have been higher than the man who was shot. This, it seems to us, was clearly competent. See Seibles v. Blackwell, 1 McMull., 56; Jones v. Fuller, 19 S. C., 66.

18 19 The first question propounded to the witness Lampley, which was objected to, was clearly competent, as its purpose was simply to bring out the whole of the conversation between the witness and the prisoner shortly after the homicide was committed ; and the second question to that witness, even if it could be regarded as a leading question, as we do not think it could, was unobjectionable, because the answer was that the prisoner did not say anything about the matter inquired about.

20 We do not see that there was any error of law in admitting the testimony of Nancy Douglass. The only objection urged to that testimony seems to be that it was irrelevant, and it certainly was not incompetent. The matter of receiving or rejecting irrelevant testimony must necessarily be left largely to the discretion of the Circuit Judge, and we do not think that the Circuit Judge abused his discretion in this instance.

21 The objection to the question propounded to B. M. Merriman, a brother of the prisoner and a witness for him, on his cross-examination, cannot be sustained. This witness was not on trial, and no prosecution was then pending against him. He was examined as any other witness, and it was clearly competent to. ask him what he had said when examined as a witness before the coroner’s inquest, when it does not appear that he was under arrest. The case of State v. Senn (32 S. C., 392) is not applicable, for there the effort was to bring out from the aeeused what he had said when examined as a witness before the coroner’s inquest. But in addition to this, the testimony elicited from this witness by these alleged objectionable questions seems better calculated to benefit rather than to injure the defendant.

22 M. C. T. Odom was examined as a witness on the part of the defence to prove the violent character of the deceased, as well as the peaceable character of the prisoner, and when asked on his cross-examination, “How is it with yourself about violence?” the question was objected to and the objection was overruled. In this there was no error of law. The manifest object of the cross-examination was to test the value of this witness’s testimony, by showing that his own character in the respect inquired about was not exactly such as would be .likely to enable him to give to the jury a correct estimate of the character of the deceased for violence; and this, under the rule laid down in I Greenl. Evid., § 446, quoted above, was clearly within the limits of a cross examination.

23 W. II. Goodale was also examined as a witness for the defence to prove the peaceable character of the prisoner, and when on his cross-examination he was asked whether he had ever heard of his being charged with an attempt to do violence to one Gardner, objection was interposed, on the ground that in attacking or defending one’s character, the testimony must be confined to the general reputation, and evidence as to particular acts is inadmissible. There can be no doubt that when a witness is put upon the stand to attack or defend character, he can only be asked on the examination in chief as to the general character of the person whose character is in question, and he will not be permitted to testify to particular facts, either favorable or unfavorable to such person; but when the witness is subjected to cross-examination, he may then be asked, with a yiewto test the value of his testimony, as to particular facts. In the eye of the law the character of a person is to be ascertained by an inquiry as to what is generally said or thought of him in the community where he resides. Hence when a witness has testified on his examination in chief that the person, as to whose character the inquiry is instituted, bears a good character, his opinion and the value of it may be tested by asking the witness on his cross-examination whether he has ever heard that the person, wlrose character is in question, has been accused of doing acts wholly inconsistent with the character which he has attributed to him. This, according to our experience, has always been allowed on a cross-examination without question. So far as we are informed, there is no distinct adjudication of this precise point in this State, and the authorities elsewhere seem to be conflicting, as may be seen by reference to 3 Am. & Eng. Encycl. Law, 116, and the cases there cited, but we think the better view is that herein adopted, and is in accordance with the practice in this State.

24 Whether the questions propounded to the witness, S. -F.-Hammond, on his cross examination- were'properly allowed, need not be considered, for these questions being designed to elicit certain statements of the prisoner made to the witness in regard to his alleged difficulty with Gardner, and the witness having said that no such statements were ever made to him, it is wholly immaterial to inquire whether there was any error in overruling the objections to such questions.

25 We now come to the consideration of the objections presented to certain questions propounded to the prisoner while on the stand as a witness in his cross-examination. In answer to the first objection, that there was error in allowing the

defendant upon his cross-examination to be‘interrogated upon anything besides the facts and circumstances of the ease, it is sufficient to cite the case of State v. Robertson (26 S. C., 117), followed by the very recent case of State v. Wyse (33 Id., 582), holding that when a defendant avails himself of the privilege of testifying as a witness in his own behalf, he assumes the position of an ordinary witness and may be treated as such. It will be observed that the prisoner was not examined as a witness until after he had put his character in issue, and hence, for the reasons above indicated, we do not think there was any error in allowing him to be asked whether he had not previously committed or attempted to commit other acts of violence similar to that for which he was on trial. So, too, the objection to the questions propounded to the defendant on his cross-examination, as to whether he had ever told Hunt, Huggins, and Cassidy that if John Odom had not come up when he did, he would have shot Gardner, cannot be sustained. The prisoner having chosen to put his character for peaceableness in issue, with a view to create a presumption that he was not capable of committing such an act of violence as that for which he was then on trial, his real character thereby became a material inquiry, and hence it was permissible to ask him these questions with a view of contradicting him by the witnesses named, which was properly permitted when the State came to reply in evidence. Of course, if the prisoner had been asked while he was on the stand whether he had told these witnesses that he had committed larceny, or forgery, or some other such crime, and he had denied it, the State could not have been permitted in the reply to offer these witnesses to contradict him; for whether he had committed larceny or forgery would be wholly immaterial to any issue involved in the case then on trial, and therefore under the well settled rule, recently considered in State v. Wyse, 33 S. C., 582, it would not be competent to offer evidence tending to contradict a statement wholly collateral and immaterial to any issue involved in the case then on trial.

26 It only remains to consider the exceptions to the judge’s charge, which may be reduced to two general heads: 1st. That there was error in the instructions given to the jury as to the law of self-defence. 2nd. That the judge charged on the facts in violation of the constitutional provision on that subject. Inasmuch as we have so recently had occasion, in the case of State v. Wyse, supra, to give our views as to the law of self-defence, we do not deem it necessary to repeat them here. We are satisfied that when the judge’s charge, which should be incorporated in the report of this ease,' is read in connection with Wyse’s case, it wnll be too plain for argument that the law on that subject was fully, clearly, and correctly given to the jury in this case.

27 As to the allegation that the Circuit Judge violated the constitution in charging on the facts, we think it is only necessary to read the charge to see t'hat this assignment of error is utterly without foundation. Neither in the exceptions nor in the argument has any specific portion of the charge been pointed out as sustaining this ground; and a careful examination of it has failed to disclose a single instance in which the constitutional provision has been violated, or in any way infringed.

The judgment of this court is, that the judgment of the Circuit Court be affirmed, and that the case be remanded to the Circuit Court, in order that a new day may be assigned for the execution of the sentence heretofore imposed.