Sims v. Jones , 43 S.C. 91 ( 1895 )

The opinion of the court was delivered by

Mr. Justice Gary.

This action is upon an alleged promissory note of the defendants’ testator, Tyrrel J. Jones, deceased. The defence is forgery, and consequent want of consideration. The jury found for the plaintiffs upon the trial on Circuit. The defendants appeal to this court on numerous exceptions.

1 The first three exceptions will be discussed together, and are as follows: “And now come-the defendants, and except to the rulings of his honor over the objections of defendants, alleging error in the following particulars: 1. In holding that the juror, J. G. Rice, was a competent juror. 2. In holding that the juror, P. P. Hamilton, was not a competent juror. 3. In holding that the juror, J. K. Young, was not a competentjuror.” These jurors were sworn upon their voir dire. Their examination will be set forth in the report of this ease. Section 2403, Rev. Stat. (1893), provides: “The court shall, on motion of either party in suit, examine on oath any person who is called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein, and the party objecting to the juror may introduce any other competent evidence in support of the objection. If it appears to the court that the juror is not indifferent in the cause, he shall be placed aside as to the trial of that cause and another shall be called.”

In the case of State v. Dodson, 16 S. C., 453, the court uses this language: “The question is whether the Circuit Judge erred in allowing certain jurors to be presented to the prisoners, who when examined on their voir dire stated that they had formed an opinion in reference to the case from what they had heard or seen in the newspapers, which, however, would not in the least influence their minds as jurors; that they were not sensible of any bias or prejudice whatever, either for or against the prisoners, and would be governed by the evidence adduced in the case. The statute, after providing that the court shall, upon the motion of either party to the cause, examine any person called as a juror upon his voir dire, declares that: ‘If it appears to the court that the juror is not indifferent in the cause, he shall be placed aside as to the trial of that cause, and another shall be called.’ Gen. Stat., eh. CXI., § 25, p. 523. This would seem to vest the power of determining the question of fact as to whether the jury was indifferent, in the hands of the court called upon to try the case, and we do not see how this court could undertake to review such determination. But even were this not so, we see no error in the course pursued by the Circuit Judge. Any other course would have the effect of excluding from the jury box in any case of such magnitude or public interest as would be likely to attract attention, the very class of persons who would be best qualified to occupy that position; for in cases of that character it would be difficult to find persons of ordinary intelligence who had not received some impressions in regard to a case from what they had heard or read in the newspapers.” Same point: State v. Williams, 31 S. C., 257; State v. Merriman, 34 Id., 17; State v. Summers, 36 Id., 479; State v. Haines, Ibid., 504; State v. McIntosh, 39 Id., 97. In the case of State v. Merriman, 34 S. C., on page 34, the court says: “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 sustaiued. We are 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 grand-father of the accused were brothers, was such a relationship as would be likely to render the juror not indifferent to this case.” These exceptions are overruled.

2 The fourth exception complains of error on the part of the presiding judge as follows: “In admitting the testimony of the witness, Charles P. Sims, that liens were given by witness’ mother to T. J. Jones during the years 1872 to 1879 inclusive.” The testimony of the witness was introduced for the purpose simply of showing that liens were given as therein stated, but no attempt was made to prove the contents of the liens. This comes within the principle laid down by the court in the case of Lowry v. Pinson, 2 Bail., 328, as follows: “But where the writing relates to a collateral circumstance, and an inference favorable to the party arises out of the fact of its execution and existence, and not out of its particular contents, parol evidence is admissible. Of this the ease of Spiers v. Willison, 4 Cranch, 398, is an instance. There parol evidence of the existence of a deed of gift was admitted, to show the nature of the possession that accompanied the deed. The allegation of the plaintiff here is that Isaac J. Pinson conveyed the land in dispute to the defendant for the purpose of defrauding her; and the object of the evidence, that he about the same time made a voluntary bill of sale to the defendant and David Maddern of all of his negroes, the bulk of his remaining property, was to show the fraudulent intention by way of deduction, not from the particular provisions of the bill of sale, but from the fact of its execution without consideration. The evidence was, therefore, properly admitted.” This exception is overruled.

3 The fifth, sixth, seventh, and eighth exceptions complain of error on the part of the trial judge as follows: “5. In ruling that the defendants could not introduce documentary evidence until after plaintiffs had closed their case in chief, and in excluding deed of settlement after proof of same by plaintiffs’ witness, Charles P. Sims, on cross-examination. 6. In ruling that the defendant could not introduce documentary evidence until after the plaintiffs had closed their testimony in chief, and in excluding the mortgage deed of S. W. Sims to T. J. Jones, after proof of same by plaintiffs’ witness, Charles P. Sims, on cross-examination. 7. In refusing to allow the defendants to introduce documentary evidence after proof of same by plaintiffs’ witness because plaintiffs had not closed their testimony in chief. 8. In refusing to permit the defendants to introduce in evidence four letters written by the witness, Charles P. Sims, after proof of same, because plaintiffs had not closed their testimony in chief.”

The testimony mentioned in these exceptions was offered by the defendants when they came to their defence, and all admitted except the mortgage of S. W. Sims to T. J. Jones, mentioned in the sixth exception, which was refused on account of irrelevancy, and to which it seems no exception has been taken, The said mortgage is set out at length in the case, but the letters are not. The rule for the introduction of testimony is thus stated in the case of Willoughby v. Railroad Company, 32 S. C., 427-8, to wit: “The first exception imputes error to the Circuit Judge in refusing to allow the written agreement, which the plaintiff in her cross-examination admitted to be the contract under which she leased the rails, to be then read in evidence. It seems that while the plaintiff was under cross-examination, the written agreement was shown to her, and she admitted ‘her signature to the contract set up in the answer, and that it was the contract under which she leased the rails.’ Now if this contract had been verbal instead of written, we do not see how defendant’s counsel could have been prevented from asking the plaintiff, what were the terms of such contract? and it seems to us that asking the privilege of reading the terms which had been put down in writing, was in effect the same thing as asking what were the terms of a parol contract which lay at the foundation of the whole controversy.

“But as we think this question was conclusively determined by the recent case of Owens v. Gentry, 30 S. C., 490, we need not discuss it further. There the sheriff was sued for certain property, which he had seized under a warrant to enforce an agricultural lien, and he justified his seizure and asserted his right to the property under such warrant; and it was there held that the defendant had the right, in the cross-examination of one of plaintiff’s witnesses, to prove the warrant and put the same in evidence at that time, because, however it may be in the United States Courts and in the courts of some of the other States, the rule here is, that the defendant may, if he can, make out his whole defence in the cross-examination of plaintiffs’ witnesses. In the present case the defendant was sued for a trespass, and undertook to justify, or rather to deny, any trespass, because of a license contained in the very agreement under which plaintiff obtained the property about which the controversy arose. It is urged, however, that the agreement being signed by other parties as well as by plaintiff, it could not properly be offered in evidence until the signatures of such other parties had been proved; but it will be observed that the plaintiff not only admitted her signature to the paper, but also admitted that it contained the contract under which she asserted her right to the possession of the iron rails, and this dispensed with proof of the signatures of the other parties.

“Again, it is insisted that no substantial injury was done to the defendant by the refusal to allow the paper read at first, because afterwards, when the defendant came to offer its testimony, the paper was duly proved and offered in evidence. If the defendant had the legal right to have the paper read in the first instance, then it was error to deny such right, aud we are bound so to declare it. But it might admit of grave doubt whether the defendant sustained no substantial injury by the refusal to allow the paper to be read in the first instance. It is very clear that the terms of that contract lay at the foundation of the whole controversy. Without it the plaintiff confessedly had no shadow of right to the possession of the rails; and it was specially set up in the answer as a justification for the alleged wrongful acts with which defendant was charged. Upon its construction, which was a matter for the court alone, might depend the question, whether plaintiff had any cause of action; and it is not difficult to conceive how it may have been a very material matter to the defendant to have this written agreement before the court while the plaintiff was undertaking to make out her cause of action.”

It will be observed that the instruments of writing offered in evidence in the cases of Willoughby v. Railroad Company and Owens v. Gentry, during the introduction of plaintiff’s testimony in chief, were unquestionably material — in fact, were the foundation upon which the defences set up in the answer rested. The decisions in this State settle the law beyond controversy, that harmless error committed by the presiding judge during the progress of the trial on Circuit, is not ground for reversal by this court. Where the rulings of the Circuit Judge are brought in review before this court, two things must appear: 1st. That the ruling to which exception was taken is erroneous. 2d. That the appellant has suffered prejudice by such erroneous ruling. Under the eases of Owens v. Gentry and Willoughby v. Railroad Co., supra, the presiding judge failed to follow the proper rule for the introduction of testimony on the cross-examination of plaintiffs’ witness, and in so doing we hold that he committed error. We do not, however, see where the defendants have been prejudiced by such error. It was incumbent on the appellant to make this appear, but he has failed to do so. These exceptions are overruled.

4 The ninth, tenth, and eleventh exceptions complain of error on the part of the presiding judge as follows: ‘ ‘9. In permitting the plaintiffs to introduce evidence that a compromise of the claim sued on was offered. 10. In permitting the plaintiff to introduce evidence that a compromise of the claim was refused. 11. In permitting the witness, Charles P. Sims, to testify (before plaintiffs closed their case in chief) to a conversation between him and P. M. Cohen in relation to a compromise of this action.” These exceptions can not be sustained for two reasons: 1st. Because Mr. Cohen, with whom the witness had the conversation in regard to the alleged compromise, did not claim that he was authorized by Mr. Jones, the defendant, to act in the premises; on the contrary, stated that, “What he did, he did himself as friend of both parties.” Such b'eing the case, nothing said by him in regard to the compromise could have been construed as an admission on the part of the defendant, Joues, and was wholly immaterial. 2d. Because the presiding judge ruled out what Mr. Cohen told and wrote the witness.

5 The twelfth, thirteenth, and fourteenth exceptions complain of error on the part of the presiding judge as follows: “12. In admitting in evidence in reply the testimony of the witness, W. D. Humphries, of declarations of T. J. Jones to him. 13. In admitting in evidence in reply the testimony of the witness, Jesse Nix, of declarations of T. J. Jones to him. 14. In admitting in evidence in reply the receipt of J. C. P. Jeter to Ed. Cromer, dated December 22, 1887.” In the case of Talbott & Sons v. Padgett, 30 S. C., 167, the rule as to what the exception should contain is stated as follows: “The object of exceptions is a very important one. It is to bring to the attention of the court the precise question of law or fact involved, and desired to be reviewed. To do this effectually and definitely, something more must be stated than merely an occurrence, or order, or decree below, objected to as erroneous. The grounds of the alleged error must be presented in a direct and positive form, and especially if it be a legal error complained of, the principle of law alleged to be violated must be stated. These exceptions fail to comply with this requirement.

6 But even if it be conceded that the object of the exceptions is to raise the question that the testimony mentioned was not properly in reply, we do not think they can be sustained, as such testimony is largely in the discretion of the trial judge, and there is nothing showing an abuse of discretion iu this case. In the case of Brice v. Miller, 35 S. C., 537, the court says: “The appellants also object that some of the testimony was irrelevant and not in reply. * * * As to the objections based on irrelevancy and not being in reply, it is sufficient to say that these are matters which must necessarily be largely left to the discretion of the judge before whom the case is tried.” These exceptions are overruled.

It is the judgment of this court, that the judgment of the court below be affirmed.