State v. Matthews ( 1923 )

September 17, 1923. The opinion of the Court was delivered by This is an appeal from the sentence imposed upon the appellant, who was convicted under an indictment, charging him with a violation of the prohibition law. The only exception is as follows:

"For that his Honor, by way of comment upon the incompetency of testimony relative to the defendant having a wife and two daughters, erred in making the following remark: ``The Court: What has that got to do with this case? It is irregular evidence and out of order. The man is being tried for a liquor charge. The question is perfectly out of order, and is to create sympathy in the minds of the jury. The question is absolutely out of order and ruled out' — the error being: (a) That his Honor by saying, ``The question is perfectly out of order, and is to create sympathy in the minds of the jury,' declared to the jury that the defendant was guilty and was seeking an acquittal on sympathy. (b) That his Honor, by the employment of the foregoing bold and powerful language, so expressed and conveyed to the jury his opinion of the guilt of the accused as to intimidate, overawe, and influence that body. (c) That the said statement uttered so dogmatically by a man of powerful personality and compelling influence, such as is possessed by his Honor, deprived the defendant of that fair and impartial trial guaranteed and secured to him by the Constitution of South Carolina. (d) That his Honor in making the aforesaid remark disparaged the testimony of the wife of the defendant and impugned the motive by which she was actuated to testify in behalf of the accused, and thereby destroyed the force and effect of the testimony of said witness."

The language alleged to be erroneous was not used by his Honor, the presiding Judge, while charging the jury, but during the examination of a witness. Therefore it cannot be assigned as error. State v. Marchbanks,61 S.C. 17; 39 S.E., 187; State v. Thrailkill, 71 S.C. 136;50 S.E., 551.

Appeal dismissed.

MESSRS. JUSTICES WATTS, COTHRAN, and MARION concur in result.

MR. JUSTICE FRASER dissents.

MESSRS. JUSTICES COTHRAN and MARION:

We concur upon the ground that the ruling of the Circuit Judge was correct, and that, while his comment was improper, it but stated an obvious inference and could not reasonably have prejudiced the defendant. We do not, however, approve the sweeping declaration of the opinion that nothing that the Circuit Judge may say during the examination of witnesses can be urged as prejudicial error. See Latimer v. Electric Co., 81 S.C. 374;62 S.E., 438.