State v. Meares , 60 S.C. 527 ( 1901 )

June 12, 1901. The opinion of the Court was delivered by The defendant was indicted and convicted on the charge of bastardy. He appealed from the sentence of the Court on numerous exceptions, which it will not be necessary to consider in detail, as all were waived except those raising the questions presented in the written argument of the appellant's attorneys.

The first question for consideration is whether his Honor, the Circuit Judge, erred in refusing to allow Dr. Dean to testify to the conduct or conversation between the defendant and Cora Jenkins. The record shows that the following took place during the examination of Dr. Geo. R. Dean, a witness for the defendant: "Q. Who brought the girl to you? A. Professor Meares brought her. Q. Whom did you first tell that she was in this condition? A. Mrs. Meares. Q. In the presense of Cora Jenkins, when Professor Meares brought her up there, what did he say, and what did she say? Solicitor Sease: I object; there is no foundation. Mr. Sanders: It is as to the conduct of the parties to show whether the man was guilty or not. Solicitor Sease: Conduct and what they said are different things. By the Court: My idea is that if any charge was made against him, his demeanor might be competent, and only the State could bring that out and not the defense. You could not prove anything by what he did not say. If some person were to make a charge against him and call upon him for an answer, he could fold his arms and not say a word, and that could not be taken as evidence against him. I don't think from either view of the matter that the defense could bring that out."

It will be observed that the evidence was offered for the purpose of showing the conduct of the parties as tending to prove whether the defendant was guilty or not. The conduct of the parties could not be shown by proving what the defendant and Cora Jenkins said. The testimony was not offered for the purpose of contradicting Cora Jenkins, as the proper foundation had not been laid, nor was it part of theres gestae, nor explanatory of an act. We fail to see wherein the testimony was admissible.

The next question that will be considered is whether it was error to refuse to charge that in bastardy cases, the testimony of the mother should be corroborated in some material particular, before a verdict of guilty could be rendered. The Am. Eng. Enc. of Law, vol. xxix., 834, thus states the rule: "In England, the mother of an illegitimate child must not only be a witness, but her testimony must be corroborated, before a man can be adjudged the putative father, or an order of affiliation can be made, and it is necessary that the corroboration be in some material particular. But this is a statutory rule; and in the absence of such a statute, no corroboration is required in such cases as a rule of law." * * * Even if Cora Jenkins could be regarded as particeps criminis, it would still be unnecessary that her testimony should be corroborated. In State v.Prater, 26 S.C. 207, the Court says: "It is true that the proper practice is for the presiding Judge to advise the jury not to convict upon the uncorroborated testimony of an accomplice; * * * but we know of no authority which requires that they should be directed to acquit unless the testimony of an accomplice is corroborated." Furthermore, there was testimony tending to corroborate the witness in a material particular.

The last question to be determined is that presented by the eighth exception, which assigns error as follows: "VIII. In charging as follows: ``Well, now, you are to consider, not only what a witness says when he goes on the stand; he is clothed with a presumption of innocence which attends every witness, because it is the corollary from the presumption that every man is innocent; he is clothed with the presumption of honesty — not that they are always honest, but that being the condition of a great majority of mankind. The law presumes that when a man goes on the stand, he is presumed to be telling the truth — not that he always does, as I charge you, but that being the presumption of a great majority of mankind, the law presumes or infers that he comes there upon the witness stand with a good character; therefore, that he tells the truth. Now oftentimes small divergences on insignificant matters testified to by one witness and denied by another is not only not an evidence of telling an untruth, but oftentimes is the strongest evidence that they have not combined or colluded or conspired together to come before the Court and impose upon it a made-up story, but upon the main salient features of the case, that everybody would observe if they were there, if they had a chance of observation or knowledge, then if they conflict, well both of them cannot be so, and both statements be true. I will believe one and discard the statement of the other, as unworthy of belief, because I cannot reconcile them upon the grounds of common honesty of each witness; therefore, I will throw aside one and believe the other, because, forsooth, it strikes me as more worthy of credit. It strikes me as being the truth as drawn from the inherent probabilities of facts as testified to by other witnesses — facts corroborated and sustained by another person; or, forsooth, you may say neither one of them are worthy of belief, and I will throw them both out of the discussion of the case. I will consider the facts and circumstances, without the testimony of those witnesses.' It being respectfully submitted that in so charging, his Honor charged upon the facts, and advised the jury how to weigh and consider the testimony, contrary to the inhibitions and restrictions imposed upon Circuit Judges by sec. 26, of art. V., of the Constitution." Sec. 8, art. V., of the Constitution, is as follows: "When a judgment or decree is reversed or affirmed by the Supreme Court, every point made and distinctly stated in the cause, and fairly arising upon the record of the case, shall be considered and decided." * * * As said by the Court in Garrett v. Weinberg,59 S.C. 162: "It only requires a glance at the exception just mentioned to see that there has been a failure to comply with the provision of the Constitution, requiring the points made by the appellant to be distinctly stated, before he is entitled to have them considered by the Court."

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.