February 25, 1925. The opinion of the Court was delivered by The appellant was convicted of murder before Judge Mauldin, and sentenced to death. He appealed, and made a motion before a member of this Court to amend his exceptions. That member referred the motion to the whole Court and the Court granted the motion to amend the exceptions, and the exceptions, 10 in number, allege error and seek reversal.
The first exception is overruled as there was no objection at the trial to the admission of this testimony, and some of the evidence was given by Dr. Tupper in response to question by the defendant's attorney, and his opinion was competent to go to the jury. He was sufficiently qualified to give his opinion after stating the facts on which he based his opinion. Jones v. Fuller, 19 S.C. 66; 45 Am. Rep., 761. State v. Davis, 55 S.C. 339;33 S.E., 449. Burnett v. Sou. Railway, 62 S.C. 281-292;40 S.E., 679. State v. Thompson, 76 S.C. 116; 56 S.E., 789.
The second exception is overruled. When Heape was killed everything that occurred at the time of the killing was admissible as part of the res gestae, and when the defendant's counsel objected the solicitor said he had no objection that the answer of John Heape be stricken out, and the record shows this. *Page 283
The third exception is overruled. No motion was to strike it out. The direction of the bullet was a material matter in the case, and was proper to be submitted to the jury for their consideration. State v.Lindsey, 68 S.C. 276; 47 S.E., 389.
Exception 4 is overruled as being without merit.
Exception 5 is overruled as the evidence of the sheriff as to the condition of the store as he found it was competent. He did not testify as to what any one told him, but he testified to a fact as to what he found the condition of the store to be, as the mental attitude of the mental condition of Carroll Orr to the occupants of the store was a material inquiry in the case. State v. Thrailkill,71 S.C. 136; 50 S.E., 551. State v. Dean, 72 S.C. 74;51 S.E., 524.
The seventh exception is without merit and is overruled.
The eighth and ninth exceptions are overruled.
The presiding Judge was careful to charge the law covering every phase of the case as to murder, manslaughter, and self-defense. Under the defendant's plea of not guilty, he was entitled to every defense. It was incumbent on the state to prove him guilty beyond a reasonable doubt, and his Honor's charge was not prejudicial to the defendant in any view of the case.
We see no error as complained of by the exceptions. All are overruled and judgment affirmed.
MR. JUSTICE FRASER and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.
MR. JUSTICE MARION concurs in result.
MR. CHIEF JUSTICE GARY and MR. JUSTICE T.P. COTHRAN did not participate. *Page 284