December 13, 1923. The opinion of the Court was delivered by The defendant was tried upon an indictment charging him with the murder of Jacob Carter, at the latter's home in Bamberg County, on June 24, 1921. The trial was had at Bamberg before Hon. Robert Lide, Special Judge, at a term not stated in the record for appeal, and resulted in a verdict of manslaughter, upon which the defendant was sentenced to imprisonment for 12 years.
The evidence for the State was largely, if not wholly, circumstantial. The defendant relied upon his plea of not guilty and upon the special plea of alibi.
The setting of the homicide is as follows:
The deceased, Jacob Carter, was an old man, over 70 years of age, a widower, living with his stepdaughter, Ella Goodwin, a first cousin of the defendant. The home of the deceased was some 300 yards from that of the defendant, who had married the widow of his only son. The families visited intimately, and were, apparently, upon friendly terms until shortly before the homicide, at which time there was a disagreement as to a sum of money which Goodwin claimed was due to his wife by Carter. Goodwin was familiar with the household surroundings and with the habits of Carter. The financial disagreement appears to have engendered *Page 112 at least unpleasant relations between Goodwin and Carter.
At some time in the afternoon of June 24, 1921, between the hours of 3 and 4 o'clock, the deceased was at his home alone; his stepdaughter, Ella Goodwin, being temporarily away from home. Two gunshots were heard in the direction of Carter's home by certain neighbors in hearing distance. The shots were some seconds apart, about long enough for a person with a single-barreled breech-loading shotgun to fire, extract the shell, insert another, and fire again. Shortly after the shots were fired a neighbor by the name of Du Bois was passing through Carter's yard upon a personal mission. He saw the body of a man lying at the wood pile, but did not go near it, possibly associating the presence of the body with the shots that had been heard, and hurried off to give the alarm. When others arrived, it was discovered that the body was that of Carter and that two loads of buckshot had been fired into his back.
It will serve no useful purpose to review the evidence in the case, which the State contends connects the defendant with the homicide. On the contrary, in the view which the Court takes of the appeal, such review may prejudice the defendant upon a second trial. It is sufficient to say that the Court has with painstaking care considered the entire evidence and have concluded that there is not such a want of evidence, connecting the defendant with the homicide, as to justify the direction of a verdict in his favor, and that the Circuit Judge committed no error in refusing the motion.
We do not deem it necessary to consider more than the following questions:
(1) Did the presiding Judge err in refusing the defendant's motion for a change of venue?
(2) Did the presiding Judge err in admitting in evidence the exclamation of Ella Goodwin when the defendant entered the home of the deceased, after the homicide, accompanied by officers? *Page 113
(3) Did the presiding Judge err in admitting the testimony of the Sheriff and of the Magistrate?
The first question: The granting of a motion to change the venue is within the discretion of the Circuit Judge when exercised without legal error. The order of Judge Shipp, which will be reported, fully justifies his refusal of the motion.
The second question: Two weeks before the homicide the defendant had been arrested under a warrant issued by a neighboring Magistrate, charging him with the violation of the automobile law, operating a car without a license. His trial had been set for 2:00 p. m. on the day the homicide occurred. At the appointed time he had not appeared and the Constable was sent after him. The Constable with a friend drove up to the defendant's home and took him into custody. About that time the body of Carter had been discovered and news of the discovery reached the party at the defendant's home. The Constable suggested to Goodwin that they go by the Carter home and learn something of the trouble. The three, Goodwin being under arrest upon the automobile charge, entered the Carter home. Immediately Miss Ella Goodwin, the stepdaughter of the deceased, exclaimed: "Take him out of here! He said he was going to kill Jacob, and he has done it" — or words of similar import. Goodwin made no reply to this accusation and, at the suggestion of the officer, immediately left the room with him. This testimony was admitted over the objection of the defendant, the presiding Judge holding that the question whether or not the testimony, under the circumstances, was entitled to any consideration at all by the jury, was one for the Court; that in his opinion it was, leaving it to the jury to say what consideration they would give it. In this connection, the reporter will add the very clear exposition by the presiding Judge, in his charge, folios 251 to 258 of the "Case." *Page 114
The question now for decision is whether or not the presiding Judge correctly decided, in the first instance, that the testimony under the circumstances, was of sufficient significance to justify a consideration of it from any angle by the jury. In the consideration of this issue, the rule laid down in State v. Sudduth, 74 S.C. 498; 54 S.E., 1013, will be applied:
"Are the circumstances surrounding the accused such as to make his silence of any significance at all? This is a question of fact to be decided by the Circuit Judge, and his conclusion will not be disturbed by this Court unless [it is] without any reasonable support."
Whether or not the evidence possessed the quality thus referred to depends upon the circumstances. Was the remark addressed to the defendant? Was he aware of his right to reply to it or the consequences of his not doing so? Did he have an opportunity to reply? Was he overwhelmed by fear, distress, or the belief that nothing he could say would avail? Under the shrieking charge of a frenzied woman, was he under a duty, not suspected or charged with the crime at the time, to answer her execration? Was he expected to do so by her, the officers, or any one present?
We do not think the circumstances warranted the admission of the testimony under the rule announced by Greenleaf and quoted in the Suddath Case:
"Admissions may also be implied from the acquiescence of the party. But acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party. And whether it is acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or the language fully understood by the party, before any inference can be drawn from his passiveness or silence. The circumstances, too, must be not only such as afforded him an opportunity to act or speak, but such, * * * as *Page 115 would properly and naturally call for some action or reply, from men similarly situated."
The defendant was under arrest for a misdemeanor not connected with the homicide; the interview was within a very short time of the discovery; the defendant had not been suspected; as soon as he entered the hall of the house, the woman, frantic with grief and horror, railed out her accusation and imprecation, addressed not to him but to the officers, herself as a witness putting it in stronger terms than the officers had done:
"Take the dirty rascal out of my house, and kill him and burn him! * * * He has killed my poor old father. Take him out!"
The officer testified that, when he caught what she had said, "I knew there was trouble and so I said, `Let's go'"; that the defendant turned around, and they carried him out. An innocent man would doubtless have acted as the defendant did, and he is entitled to the presumption of innocence.
In Lewis v. State, 109 Miss., 586; 68 South., 785, a child of a deceased speaking directly to the defendant said: "You killed my poor father not for a thing * * *; he hadn't done a thing." It was held that his silence was not admissible as an admission of guilt. "The defendant was not called on to deny the accusation."
The admission of such evidence is strongly assimilated to the admission of a confession; in fact, it is sometimes spoken of as an implied confession. When a confession is offered as voluntary, the question of whether or not it is voluntary must be determined, in the first instance, by the presiding Judge. State v. Danelly,116 S.C. 113; 107 S.E., 149; 14 A.L.R., 1420, and cases cited. If there should be a conflict of evidence upon this question and the presiding Judge is not satisfied that the confession was voluntary, he may submit the issue to the jury under instructions to disregard it if they find that it was not voluntary. 12 Cyc., 482. If the evidence is susceptible *Page 116 of no other conclusion than the confession was involuntary, it is error for the Circuit Judge not to exclude it, for its reception is calculated to create an impression unfavorable to the defendant. If the Circuit Judge should submit the issue to the jury and this Court should say, as a matter of law, that the confession was voluntary, the defendant will have been benefited rather than prejudiced. State v.Danelly, supra.
The submission of the issue in the case at bar to the jury, whether or not the evidence was of sufficient significance to justify its consideration, does not, therefore, cure the error in not excluding it in the first instance.
The third question: The testimony of the Sheriff and that of the Magistrate as to the declarations of the deceased complaining of the conduct of the defendant and applying for a peace warrant were clearly inadmissible as hearsay.
The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.
MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur.
MESSRS. JUSTICES WATTS and MARION concur in the result.