December 31, 1923. The opinion of the Court was delivered by The following statement appears in the record:
"The defendants, Clayton Underwood and B.B. Hughes, were indicted for the killing of Oscar Mitchell and were charged in the indictment with murder. The defendants were arraigned at the September, 1922, term of the Court of General Sessions for Greenwood County, Judge H.F. Rice presided over this term of Court. The defendants entered a plea of not guilty.
"When the case was called, counsel for the defendants made a motion for the continuance of the case on the *Page 9 grounds, among other things, that the defendants were not ready to come to trial, and that the defendant, B.B. Hughes, was not well. The Court overruled the motion for the continuance.
"A motion was then made for a continuance on the ground that George Bell Timmerman, one of defendants' counsel, was obliged to attend Court at his home in Lexington. This motion, after argument, was overruled.
"On the next afternoon, Mr. Grier, of counsel for the defense, made a motion for a continuance on the ground that he was engaged as counsel for Ernest Ashley, in Anderson, which case was set for trial on Thursday, and that he could not be in two places at the same time. At this point Judge Rice said in substance: `Mr. Grier, on yesterday a motion was made to continue this case because Mr. Timmerman had to be at Lexington Court, and now a motion is made to continue because you have to be at Anderson Court. This Court here at Greenwood has got to be run, and I am going to run it.' At this point there was considerable applause in the Court room, whereupon Judge Rice admonished the spectators that he would not allow any such outbursts of applause, and thereupon Mr. Grier stated to the Court that the defendants ought not to be tried under conditions of this kind. The Judge overruled the motion for a continuance. There was no formal motion made for a continuance on the ground of prejudice. The Ashley case was tried at the same time that this case was tried.
"On the call of the case the jurors were sworn upon voirdire, and the jury was empaneled, and the trial of the case entered upon. The trial of the case was entered upon on Thursday afternoon and was concluded Saturday afternoon, and the jury was charged with the case. The jury announced its inability to agree late Saturday night, but the Court did not see fit to discharge the jury and kept them until Sunday morning, when, about ten o'clock, they announced that they had arrived at a verdict as to the defendant, *Page 10 Clayton Underwood, but were unable to reach a verdict as to the defendant, B.B. Hughes. The Court received the verdict over the objection of the defendants on Sunday morning, which was to the effect that Clayton Underwood was found guilty of murder with recommendation to mercy. The Court ordered a mistrial as to the defendant, Hughes."
The defendant appealed upon numerous exceptions, the first of which is as follows:
"It was error in the presiding Judge to force the defendants to trial in an atmosphere of hostility and prejudice which was so clearly demonstrated to the Court by the attempt of the audience to applaud on the simple proposition asking for the continuance of the case.
The error being:
"(a) Under the Constitution and laws of the State of South Carolina, the defendants were entitled to a fair and impartial trial, freed from prejudice and passion, and the defendants were forced to trial in an atmosphere of prejudice and passion and were, therefore, deprived of their constitutional rights.
"(b) The homicide had been committed only a short time before the said trial, and there was no necessity to press the case to trial in an atmosphere charged with passion and prejudice."
His Honor, the presiding Judge, promptly and sternly rebuked the applause in the Court room, and there was no repetition of it afterwards.
The appellant's attorneys have failed to show prejudicial error, and this exception is overruled.
The second exception is as follows:
"It was error on the part of the presiding Judge to exclude from evidence the letter from Bernice Glenn to Oscar Mitchell of date August 2, 1922, postmarked Columbia, S.C. *Page 11
The error being:
"(a) The letter was competent evidence tending to show the character of the deceased, Oscar Mitchell, and the probability of his having made the attack upon Mrs. Underwood — disclosed by her testimony.
"(b) It tended to show that the deceased, Oscar Mitchell, was a man who would in all probability be guilty of an advance of that character."
Whatever may have been the relations of Oscar Mitchell with the writer of the letter in question, it was incompetent as testimony in the case then being tried. This exception is, therefore, overruled.
The third exception is as follows:
"It was error in the presiding Judge to exclude from evidence the letter of July 21, 1922, to Oscar Mitchell from his wife, Mrs. Annie Mitchell, in that the said letter was competent testimony tending to show that the said Oscar Mitchell had practically deserted his wife and child and was not supporting them, and tended to throw light upon the character of the said Oscar Mitchell and the probability of his having made the attack which he is alleged to have made upon Mrs. Underwood."
For the reasons just stated, this exception is overruled.
The fourth exception is as follows:
"It was error on the part of the presiding Judge to allow the witness, Mrs. W.H. Hurt, to testify as follows: `Q. One question I forgot to ask you. Were you present on the afternoon when Mary Trussell had a conversation with you and your husband? A. Yes, sir. Q. Did Mary Trussell state to you and your husband that afternoon that she was in the front room playing the phonograph when the shot was fired, and that she said to herself that Clayton had shot Oscar; and that the night before at Ware Shoals, when Oscar went to get his cap, Clayton Underwood said, "I am going to kill the son of a bitch." *Page 12 Did you hear her say that? Did she make that statement? A. Yes, sir.'
"The error being:
"(a) The testimony was not in reply to any material fact to which the said Mary Trussell had testified on direct examination.
"(b) It was, in substance, the admission of incompetent and hearsay testimony against the defendant, Clayton Underwood, by way of contradiction of Mary Trussell, and an effort to prove threats on the part of Underwood towards Mitchell by hearsay testimony.
"(c) There was no issue between Mary Trussell and the witnesses for the State as to the feeling which existed between Mitchell and Underwood on the Sunday before the killing, and there was nothing in the testimony of Mary Trussell which could be affected by the contradiction of her, since she and the witnesses for the State were agreed upon the apparent friendliness existing between Underwood and Mitchell at the time. Therefore, the purpose, and only purpose, of the testimony, was to bring out a threat by way of contradiction, to which the witness could not have testified otherwise.
"(d) This testimony was harmful to the defendant, in that the record shows that it was urged with great force by the State's attorneys in the argument of the case."
The record shows that the question giving rise to this exception thus arose while Mrs. W.H. Hurt was on the stand as a witness:
"Q. One question I forgot to ask you. Were you present later on that afternoon when Mary Trussell had a conversation with you and your husband? A. Yes, sir. Q. Did Mary Trussell state to you and your husband that afternoon that she was in the front room playing the phonograph when the shot was fired, and that she said to herself that Clayton Underwood had shot Oscar, and that the night before at Ware Shoals, when Oscar went to get his cap, *Page 13 Clayton Underwood said, `I am going to kill the son of a bitch?' Did she make that statement? A. Yes, sir.
"Mr. Grier: We object to that question on the ground that it is not in reply; Mary Trussell couldn't answer that question. We raise no objection to the laying of the foundation of it, but incompetent testimony can't come in by way of contradiction.
"Counsel for the State: If that statement was made, it would go to show that a grudge was held against Mitchell by Underwood before any attempted assault, and would show an intent to kill.
"Court: I think I will let it stand as a contradiction as far as the statement of this girl to Mrs. Hurt goes; Underwood was not present, and there is no contention that he was present. The question is whether or not the statement can go to show the child's veracity. It might go as a contradiction. I will let it stand.
"Mr. Grier: We object to the testimony, first — as to the form of the question, you can't contradict on an immaterial matter; we object on the ground that it is not competent testimony, and it is not in reply to defendant's testimony.
"Court: I overrule the objection.
"Counsel for State: The first part of the question —
"Mr. Grier: The question must stand as a whole."
This exception must be sustained for the reason that the testimony was incompetent and prejudicial to the rights of the appellant.
The sixth exception was abandoned.
The fourteenth exception is as follows:
"It was error in the presiding Judge to hold the jury until Sunday morning and to receive the verdict of the jury on Sunday morning, after the termination of Court by limitation.
"The error being: (a) The jury had announced that it was unable to agree late Saturday night, and by keeping *Page 14 the jury through Saturday night and up until Sunday morning the presiding Judge forced an agreement against this defendant."
Section 582 of the Code of Civil Procedure 1922, is as follows:
"When a jury after due and thorough deliberation upon any cause return into Court without having agreed upon a verdict, the Court may state anew the evidence, or any part of it, and explain to them anew the law applicable to the case, and may send them out for further deliberation; but if they return a second time without having agreed upon a verdict, they shall not be sent out again without their own consent unless they shall ask from the Court some further explanation of the law."
There is nothing in that section showing error on the part of his Honor, the Circuit Judge. And the recent decision by this Court in the case of State v. Simon,120 S.E., 230, does not sustain this exception, as the facts in the two cases are materially different.
The other exceptions will be incorporated in the report of the case.
The cases of State v. Coleman, 20 S.C. 441, andState v. Edwards (S.C.) 120 S.E., 490, show that the twelfth exception is without merit.
The thirteenth exception cannot be considered, as it is in violation of Rule 6 of the Supreme Court, which provides that —
"Each exception must contain a concise statement of one proposition of law or fact which this Court is asked to review." "The exceptions should not be long or argumentative in form."
In none of the other exceptions have the appellant's attorneys satisfied this Court that there was prejudicial error. and they are, therefore, overruled.
Reversed and remanded for a new trial. *Page 15
MESSRS. JUSTICES FRASER and COTHRAN concur.
MR. JUSTICE WATTS concurs in the result.
MR. JUSTICE MARION did not participate.