January 20, 1911. The opinion of the Court was delivered by Under an indictment for murder, the jury rendered a verdict of guilty, against the defendant, with a recommendation to the mercy of the Court, whereupon he was sentenced to imprisonment for life in the State penitentiary.
The defendant appealed upon exceptions, which will be set out in the report of the case.
First Exception: The only statement in the record, with reference to this question, is as follows:
"The jurors were placed on their voir dire. One juror, W.H. Lathan, was related by blood within the sixth degree to J.M. Lathan and S.R. Lathan, who were witnesses and testified for the State and were the employers of John Beaty, the deceased. The Circuit Judge refused to stand the jurors aside, and the defense used a challenge and exhausted nine of its ten challenges."
There are two reasons why this exception cannot be sustained: There is no rule of the common law, nor is there a statute disqualifying a juror, on account of his relationship to a witness, either by affinity or consanguinity, within any degree. (2) The defendant had not exhausted his peremptory challenges. State v.Hayes, 69 S.C. 295, 48 S.E. 251.
Second Exception: The record shows that the following took place when the questions mentioned in the exception were propounded:
"Mr. Gaston: I don't know that the solicitor has got the right to go into the details of these previous offenses. If he is attacking the defendant as a witness he has a right, *Page 440 as I understand it, under the law to go into his previous bad character in a general way; but he can't attack him as a defendant in this way. Now, the defendant admits the previous arrests and services on the chain gang, and I think that is as far as the solicitor can go." * * *
"The Court: Yes, sir; I think the question as put is competent. Now, I don't understand the solicitor as going into details. He simply asked this witness, as I understand it, wasn't you convicted of carrying concealed weapons at a certain time? Wasn't you convicted of carrying concealed weapons at another certain time? That is not going into details. Going into details, as I understand it, means, `Why did you have a pistol at that time? What were you doing with it? What were you carrying a pistol for?' And giving all the facts and circumstances. But just the bald statement, if you were convicted of carrying concealed weapons at a certain time, and then at another certain time, it does not strike me that that is going into details. I will have to overrule the objection."
After the defendant's attorneys admitted the previous arrests and service on the chain gang, we fail to see wherein the ruling of his Honor, the presiding Judge, was prejudicial to the appellant, especially as we concur with the Circuit Judge, that the questions did not attempt to elicit the details.
Third Exception: The following statement appears in the record:
"It came out in evidence that defendant's attorneys, Gaston Hamilton, were at the inquest and made suggestions as to putting certain statements in the record. State's counsel argued that if at the inquest they would have found and proven that deceased was armed and may have stated that they saw the body disrobed, etc.; but on defendant's attorney correcting this, replied: They were at the inquest and were zealous enough and long-nosed *Page 441 enough to have found out if deceased was armed, and not finding, so concluded that deceased was not armed. There was no proof that he was armed at the time of the killing."
When the solicitor made the statement, "that if at the inquest they (defendant's attorneys) would have found and proven that deceased was armed and may have stated that they saw the body disrobed," the defendant's attorneys corrected the statement, whereupon, instead of reiterating that fact, the solicitor said by way of inference: "They were at the inquest, and were zealous enough and long-nosed enough to have found out if deceased was armed." The second statement was in the nature of a withdrawal of the first, and there was no further correction by the defendant's attorneys. But there is even a stronger reason, why the exception must be overruled. The record does not disclose the fact that the attention of the Circuit Judge was called to the language of the solicitor, and there was no ruling from which the defendant could appeal.
Fourth Exception: The following statement is set out in the record:
"State's counsel denies that he ever stated to the jury, `that they must convict the defendant,' but did argue that under the law and evidence he was guilty, and hence they ought to convict him, and made a statement of published and facts of record, to show the terrible consequences to society in the failure of juries to convict murderers. This was passed on by the presiding Judge on motion for new trial, who held that the solicitor's argument was legitimate reply to argument for defense, because defense had argued, in effect, that they should not convict a white man for killing an impudent negro. This was a white man's country, etc."
There are two reasons why this exception cannot be sustained: (1) It does not appear that the presiding Judge was requested to rule upon the language of the solicitor. Therefore, the question is not properly before this Court for consideration. *Page 442
(2) It appears that the language used by the solicitor was in reply to the argument for the defense, that the jury "should not convict a white man for killing an impudent negro; that this was a white man's country," etc.
As the counsel for the defense first injected extraneous argument into the case, the defendant is not in a position to complain of the argument in reply. State v. Duncan, 86 S.C. 370.
What has already been said, disposes of the fifth exception.
Appeal dismissed.