May 9, 1910. The opinion of the Court was delivered by Acting Associate Justice, inplace of Mr. Justice Hydrick, disqualified.
The defendant, W.T. Jones, upon an indictment, charging him with the murder of Mrs. Marion Jones, his wife, was tried at the spring, 1909, term of the Court of General Sessions for Union county, convicted of murder, with recommendation to the mercy of the Court, and duly sentenced.
The defendant has appealed to this Court upon the following grounds:
(1) "Exceptions in connection with the refusal to quash the indictment, and to compel the State to elect.
"Because his Honor erred in not sustaining the motion to quash the indictment, and because, failing in this, he did not require the State to elect upon which count of the indictment the trial should proceed, upon the grounds stated in the argument of said motion, which were as follows, to wit:
(a) "Because the Court erred in not quashing the indictment upon the grounds submitted on the motion therefor.
(b) "Because the State should have been required to elect upon which count of the indictment it would proceed.
(c) "Because it was error to admit the testimony of B. G. Gregory and Arthur English, relative to Mrs. Jones' acts and conduct towards them as relevant and competent and was entirely illogical if the conversation between them was excluded as irrelevant and incompetent.
(d) "Because the illustration in regard to circumstantial evidence used by the Judge in his second charge to the jury was in reality and substance a charge upon the facts.
(e) "Because the evidence, as a whole, was insufficient to bring about a conviction. *Page 35
(f) "Because the affidavits submitted in regard to certain of the jurors who had been impanelled should have caused a setting aside of the verdict.
(2) "Exceptions as to the matters of evidence.
(a) "Because his Honor erred in allowing the witness, Ida E. Whitlock, to testify as follows: `I have seen on her body, the marks of where he struck her;' and, further: `I saw marks and bruises on her body that Mr. Jones had made;' when it clearly appears that the witness was not speaking from her own knowledge, but from information that she had received.
(b) "Because his Honor erred in failing, when requested so to do, to instruct the witness, Ida E. Whitlock, to refrain from making statements based upon hearsay, this failure taking place especially where the said witness in response to the question: `Q. Harry was upstairs with them? A. I suppose he was in his own bedroom, his mother told me he was.'
(c) "Because his Honor erred, after holding upon objection made that the testimony of the witness, John Williams, as to whiskey and the taking of supper at the table of Jones was irrelevant and inconsistent, in refusing, upon request therefor, to have the same stricken from the record, and in leaving it to the jury to determine whether or not its relevancy should appear, thus leaving it to the jury to determine a question of law as well as of fact.
(d) "Because his Honor erred, after objection made, in allowing the witness, B.G. Gregory, to answer the question: `Q. State whether or not before that conversation with Jones you had received a message by a negro boy:' to state that the negro from whom he had received the message was living with Mr. Jones and still living there, and that his name was Mat Gist, thus leaving it to the jury to infer whether the relevancy of the question or answer had been shown or not, it being respectfully contended that unless some connection between Jones and the negro was established *Page 36 no action of the negro could bind the defendant or militate against him.
(e) "Because his Honor erred in allowing, over objection, the witness, B.G. Gregory, to testify as to what took place between himself and Mrs. Marion Jones on the night of March 16, 1906, when, as it is respectfully submitted, that each and every portion of it should have been held to be irrelevant and incompetent because there was no proof, certainly no adequate proof, that the defendant, W.T. Jones, was aware of the transaction at the time of its occurrence or had any knowledge connected therewith; and because, as it is respectfully submitted, there is no proof that W.T. Jones was on the premises that night or could in any sense be charged either with knowledge of or responsibility for such occurrences.
(f) "And, further, because his Honor erred in submitting the relevancy of this testimony to the jury for their determination, thus submitting to them the solution of a question both of law and of fact.
(g) "Because his Honor erred in holding that the witness, B.G. Gregory, could state as to whether when he left the house of W.T. Jones, the defendant, on the night of the 16th of March, 1906, Mrs. Jones was crying, holding that the same was an expression of her physical condition, whereas, it is respectfully submitted, that crying is as much an expression as words could be, and in fact is language, and should therefore not have been permitted to be given in evidence unless it had been proved, which it was not, it is respectfully submitted, that Jones, the defendant, was present or had knowledge thereof.
(h) "Because his Honor erred in allowing, over objection, the witness, Arthur English, to testify as to what took place between himself and Mrs. Marion Jones on Sunday morning, July 5, 1908, when, as it is respectfully submitted, that such and every portion of it could have been held to be irrelevant and incompetent because there was no proof, certainly *Page 37 no adequate proof, that the defendant, W.T. Jones, was aware of the transaction at the time of its occurrence or had any knowledge connected therewith; and because, as it is respectfully submitted, there is no proof, certainly no adequate proof, that W.T. Jones was on the premises that morning in a position to be or could in any sense be charged with knowledge of or responsibility for such occurrences.
(3) "Exception to the first charge of his Honor, the presiding Judge, to the jury.
(a) "Because his Honor erred in charging upon malice in his first charge to the jury as follows: `Malice means hatred, hostility or ill will, evil intent or disposition, and it may be shown by threats, lying in wait, shooting from ambush, or in some such manner, some express evidence of malice, or it may be implied from brutal conduct on the part of the person committing the crime, such brutality as would show a total disregard of human life, such conduct from which the law implies a malicious heart, a heart totally devoid of social duty, and fatally bent on mischief;' the error being as applied to this case that his Honor charges that from brutal conduct on the part of the person committing the crime of murder, malice could be inferred; whereas, his Honor should have limited it to brutal conduct at the time of the commission of the offense, and not to brutal conduct generally. It should have been restricted to the time of the actual killing, for it is the brutal conduct then, and then only, which warrants a jury in saying whether a killing was done with malice or without malice; whereas, the charge left the jury under the impression that if a person were brutal towards another, or were brutal to another on former occasions, or had been guilty of brutal conduct generally on prior occasions, malice might be inferred to have existed at the time of the killing.
(b) "Because his Honor erred in charging the jury as follows in his first charge to the jury: `It is charged here in this indictment that this defendant killed the deceased by *Page 38 administering poison to the deceased. Now, I charge you, gentlemen, that the administering of poison, even though not done by a direct act of the defendant, that is, even though he does not administer it by his own hand to the deceased, yet still if it was administered by putting the deceased in such fear as to persuade and induce her to take the poison, then that would be as much an administering of the poison by the defendant as if he had administered it to her by his own hand, and I charge you that if the deceased came to her death by suicide, by her own hand, that if the State has not satisfied you beyond a reasonable doubt that she did not commit suicide, that the deceased did not come to her death by her own hand, then you cannot convict this defendant under this indictment, with this one limitation: In order for one who incites to suicide to be guilty of murder, a casual connection must exist between the incitement and the suicide, the incitement must be, not necessarily the sole cause, but an inducing cause of the crime. Provided this connection is established, I charge you that it is the law that the inciter is as truly responsible for the act, and therefore as truly a murderer as though he had prevailed upon a third person to commit the homicide. A human being is dead as the consequence of the deliberate act, and it would be a reproach to the law if he could escape punishment by electing to bring about the death by the victim's own hand rather than by the hand of a third party. If he employs a third person, the interposition of the will of the third person will not render him less guilty. Why then should the intervention of the victim's will? I charge you that as the law, that if a man persuades another to commit suicide, and aids, counsels, and abets him in the commission of the act, by furnishing the means, or putting the means within reach, with the intention of bringing about a condition of mind where the person would naturally attempt to commit such act, where the person would seek such means, and place such means in the way, so that the person when *Page 39 aroused to that state of mind by his deliberate act, would attempt to commit suicide, then that would be for the jury to say whether that was such participation in the suicide. I will give you an illustration: Where there were two men confined in jail, one under sentence of death, to be hanged, the other prisoner persuaded him to commit suicide and so to avoid being hanged, and aided him in preparing the rope with which he hanged himself, aided him, counseled him and furnished him with the means whereby he committed the act, that man was held to be guilty of murder, and that is the law in this State;' the error being at least threefold; first, that there was no allegation in the indictment indicating to the defendant that he was being tried on the charge of his inducing or compelling his wife to commit suicide; second, there was in the evidence submitted nothing going to prove that on the night of her death and immediately preceding her death the defendant had either attempted to persuade or force his wife to commit suicide by poisoning; third, that the language of the Judge left the jury to infer that if any general bad treatment on the part of the defendant during the time of his residence in his new home was calculated to make the deceased so unhappy and so miserable that she would seek to escape from her unhappiness by destroying herself, that the jury would convict the defendant.
(c) "Because his Honor erred when he charged the jury as follows in his first charge to the jury: `That covers the case, gentlemen. Take the record and find a verdict. When you reach your verdict, and you must arrive at one of them, the foreman will write it on this indictment and sign his name as foreman with the date;' Therein the Judge directed the jury to find one or the other of four verdicts; the first was `guilty of murder,' the second was `guilty of murder with recommendation to mercy,' the third was `guilty of manslaughter,' and the fourth `not guilty.' He distinctly stated to the jury: `You must arrive at one of *Page 40 them.' He kept the jury in the room the whole of one night and the greater part of one day, and when they stated on being called out that they had not reached a verdict and were differing about the facts he charged them again on the law and sent them back, thus indicating that he intended that they must find one of the verdicts which he had stated; the error being that under the law of South Carolina and under the acts of our Legislature the jury has a legal right to make a mistrial.
(4) "Exceptions to second charge of his Honor, the presiding Judge, to the jury.
(a) "Because his Honor erred when informed by the jury that they had failed to agree and that their differences where upon the facts of the case, and not upon the law of the case, in again charging them in regard to the law.
(b) "Because his Honor erred in using the following language in his second charge to the jury: `I have called you out and had you brought out, Mr. Foreman and gentlemen, to urge upon you the importance of reaching a verdict in the case we are now considering. You have been engaged in the case ever since Wednesday afternoon and have had it under actual consideration, under the charge of the Judge ever since nine o'clock last night, and I want to impress upon you, gentlemen, that you should reach an agreement in the case. The whole testimony is before you, the law of the case has been explained to you and you ought to realize that an immense amount of labor and of talent has been employed in presenting the case to you, and you have it as fairly before you as any jury could have it, and there is no reason why you should not be able to decide it. These mistrials ought not to occur; the county is at great expense in trying the case, and you ought, if possible, reach some conclusion in the matter. Of course, while that is an element you ought not to consider when a human life is at stake, still you ought to try and reach a verdict. Some one has to do it. Some twelve men sitting where you are *Page 41 have to decide this matter, and you don't want it said that you could not agree, that you were brought here and this trial gone through with, the case presented to you and you could not decide it in some way. You don't want to shift your responsibility upon some on else. Some twelve men have to decide the case, and it is not a fair thing to want to shift the responsibility of deciding the case on some one else by holding out a great length of time and getting the Judge to order a mistrial. I know it is a very hard matter sometimes to decide questions of fact. I know that from my own experience, because I have to decide a great many of them on the equity side of the Court. I know it is hard, and I sympathize with you, gentlemen, but because it is hard is no reason why you should dodge it. I would not want to dodge a case and throw it upon my successor, and I would not want it said that I shirked my responsibility, and I think you gentlemen ought to feel that way about it;' in that the Judge was urging the jury not to exercise their legal right to make a mistrial; and in that the Judge urged the jury not to subject themselves to criticism for failing to reach a verdict; and in that the language of the Judge was calculated to influence the jury to be guided by the judicial anxiety that there should be no mistrial rather than upon their own conception of the difficulties presented by the facts.
(c) "Because his Honor erred in distinctly stating to the jury that he wanted to again charge the jury, and would `do so at the risk that I might make some little slip stating to you the law of the case;' and, in further stating to the jury: `I have to be particularly careful in a hotly contested case such as this is not to fall into any apparent error of law;' the error being an indication to the jury, when this language is read in connection with the context, that the Judge personally considered a slight error or an error of law that was not too apparent as in itself of but little consequence, and in that it further indicated to the jury the *Page 42 great necessity for reaching a verdict in this case by disregarding minor things.
(d) "That his Honor erred when in speaking of the Hoyt Hayes case he used the following language in his second charge to the jury: `Under that testimony Hayes was convicted and after that the notes were taken and submitted to handwriting experts in New York. Those handwriting experts said that the note was written by the woman, that it was not manufactured, that there could be no mistake about it. Acting on the testimony of those experts, testimony to which I must confess I don't attach much importance, the Governor gave a respite to the man and subsequently pardoned him, but it always appeared to me that if the handwriting experts had been right, he had compelled her to write that note and place it there where it would be found. That would be a consistent theory. Suppose he had taken the gun and forced her to do that, out there in the woods with no one around, that could have been done. That is just an instance I cite to you in a case of circumstantial evidence:' which language, it is respectfully submitted, was calculated to impress the jury with the idea that in considering circumstantial evidence the jury was at liberty to act upon what they conceived might have been the case, upon the idea of what could have been the case, whatpossibly could have been done instead of upon the idea of what actually was done, or the proof demonstrated orshowed had been done.
(e) "Because his Honor erred when he charged the jury in his second charge as follows: `I could not feel that I were doing my duty to this county if I were to let you off with a mistrial after so short a deliberation. Your comfort has been attended to as far as possible. I realize that a great deal of hardship is incident to this kind of service. I take it that I am talking to you, gentlemen, who earnestly desire to reach a verdict in this case; if that be not so, then my words are wasted; but I take it that you are such men. *Page 43 If there is any one of you who is not trying to decide this case on the law and the evidence, but has in view some personal reasons, then it is a sad thing and very unfortunate. I tell you, gentlemen, that the jury box is the last place where a man should sit and seek to reward a friend or punish an enemy. When you get in your jury box you should divest yourselves of any personal feeling in the matter and strive earnestly to reach the truth.
"`To thine own self be true, and it must follow as the night the day —
Thou canst not then be false to any one.'
"`I hope you gentlemen will take this case, the testimony as you have heard it, and the law as I have given it to you, and try to reach a verdict. Retire to your room.' It is respectfully submitted that this language was calculated to impress upon the jury the idea that they were there in the charge of the Judge, dependent entirely upon him as to when they could be relieved from further effort in the case, and the thought that there was no escape for them except by rendering some of the four verdicts which the Court had submitted, for their consideration, whereas, it is respectfully submitted, that in this State the jury itself is empowered with the right to put an end to its own deliberations by twice coming into Court and stating their inability to agree. This is a legal right of the jury which, it is submitted, the language of the Court seemed to take away from them.
(f) "Because the second charge of the presiding Judge taken as a whole is a charge upon the facts in that the illustrations selected by him and the applications of the facts covered by those illustrations were so clearly akin, so closely resembled the facts under consideration by the jury in this case that the jury could not but see that there was a discussion being had by the Judge of the facts in this case under the form of an illustration. *Page 44
(g) "That the charges taken as a whole clearly indicate to the jury his Honor's impression in regard to the facts of the case under consideration.
(h) "That the repeated insistence on the part of the Judge that the jury should find a verdict indicated to the jury that the Judge was satisfied that the facts presented but little difficulty and were legally capable of having a verdict rendered upon them, and his illustrations taken in connection therewith in the second charge clearly indicated to the jury his opinion that they should find against the defendant."
The exceptions embraced in the ground of appeal, denominated "5," involve the same questions as are embraced in the exceptions set forth in the first ("1") ground of appeal.
OPINION. The indictment charged the defendant with murder, on two counts. Omitting the formal parts, the first count charged him with "administering and causing to be administered to the said Marion Jones a certain deadly poison commonly called strychnine," on account of which she died; and the second count, with inflicting on and creating in the said Marion Jones "certain mortal injuries and a mortal sickness, a further description whereof is to the jurors aforesaid unknown," from which she died.
On the call of the case for trial, counsel for defendant moved to quash the different counts of the indictment on the ground of indefiniteness; "and, failing in that, to require the State to elect upon which count of the indictment the defendant would be tried, * * *." The refusal of the trial Judge to grant these motions is made the basis of the first exception.
The indictment is sufficiently definite (sec. 56, Crim. Code); and there was no error in refusing to require the State to elect. The rule in this State, as deduced from the cases of the State v. Nelson, 14 Rich., 169, and State v. *Page 45 Scott, 5 S.C. 434, seems to be that, while distinct offenses may be charged in separate counts of the same indictment, the proper practice is, where the several offenses grow out of the same transaction, to instruct the jury to pass upon the several counts separately; but if the several offenses charged do not grow out of the same transaction, then the proper practice is to require the prosecuting officer to elect upon which count he will proceed. State v. Sheppard, 54 S.C. 181,32 S.E., 146. In the case at bar the offenses charged grew out of the same transaction; in fact, the same offense was charged in each of the counts of the indictment.
It is alleged that the trial Judge erred in admitting the testimony of B.G. Gregory and Arthur English in relation to the conduct of Mrs. Jones towards them. Before admitting this testimony, it was shown by testimony from which the conclusion could have been reasonably drawn, that the defendant was in the house at the time of the alleged conduct of his wife, and the circumstances clearly indicate that he was there for the purpose of witnessing her conduct.
It is further alleged that the trial Judge erred "in allowing the witness, Ida E. Whitlock," to testify "from information she had received;" and "in failing, when requested so to do," to instruct her to refrain "from making statements based upon hearsay, * * *." The Judge cautioned this witness in the following language: "Don't state anything that Mrs. Jones told you. You may state what you saw, if anything, but not what was told you." Besides, there was no motion to strike out the testimony complained of. After the above instruction by the Court, the witness, on cross-examination by Mr. Johnstone, in reply to the question, "Harry was upstairs with them?" answered, "I suppose he was in his own bedroom, his mother told me he was." Thereupon, counsel remarked: "We must insist that your Honor instruct this lady about *Page 46 hearsay matter, * * *." There was no motion to strike out her answer.
Error is further charged "in refusing, upon request therefor," to have stricken from the record "the testimony of the witness, John Williams, as to whiskey and the taking of supper at the table of Jones, * * * and in leaving it to the jury to determine whether or not its relevancy should appear, thus leaving it to the jury to determine a question of law as well as of fact." Respecting this motion to strike out, the Court said: "Gentlemen, you will see that all this about whiskey and taking dinner at the table is not relevant to this inquiry, and you will not consider it unless its relevancy be shown later." Evidently, the meaning of this instruction to the jury, and so interpreted by them, was that the jury should disregard it unless its relevancy was, thereafter, shown to the Court and admitted by the Court. This construction of the Judge's language seems to be clear, when it is considered that, when the motion to strike out was first made, he remarked: "If its relevancy is shown later I will let it in, otherwise I will have to strike it out."
Error is further charged "in allowing the witness, B.G. Gregory, to answer the question: `Q. State whether or not before that conversation with Jones you had received a message by a negro boy:' to state that the negro from whom he had received the message was living with Mr. Jones and still living there, and that his name was Mat Gist, * * *." The witness was asked the question: "Q. State whether or not before that conversation with Jones you had received a message by a negro boy?" Upon objection, the Court held that, "the relevancy will have to be shown." The question was not further pressed.
It is alleged, further, that the trial Judge erred in defining malice, in that, "as applied to this case," his Honor charged "that from brutal conduct on the part of the person committing *Page 47 the crime of murder, malice could be inferred, whereas, his Honor should have limited it to brutal conduct at the time of the commission of the offense, and not to brutal conduct generally." The testimony tended to show that there were continuous acts of brutality on the part of the defendant against the deceased from January, 1906, up to within a very short time of her death.
In the case of State v. Bodie, 33 S.C. 129, 11 S.E., 624, in which the defendant, in that case, was charged with murder, the Court observed: "It cannot be doubted, that in a case of this kind it is competent to introduce testimony tending to show the relations previously existing between the parties (State v. Senn, 32 S.C. 392); * * *."
Error is alleged to have been committed in charging the jury in relation to one who incites another to commit suicide; the alleged error being, "first, that there was no allegation in the indictment indicating to the defendant that he was being tried on the charge of his inducing or compelling his wife to commit suicide; second, there was in the evidence submitted nothing going to prove that on the night of her death and immediately preceding her death the defendant had either attempted to persuade or force his wife to commit suicide by poisoning; third, that the language of the Judge left the jury to infer that if any general bad treatment on the part of the defendant during the time of his residence in his new house was calculated to make the deceased so unhappy and so miserable that she would seek to escape from her unhappiness by destroying herself that the jury could convict the defendant." The charge of his Honor was not irrelevant, correctly stated the law and was not prejudicial to the defendant. We think that the "third" subdivision of the alleged error herein is a misconception of his Honor's charge.
It is further alleged that his Honor erred in charging the jury as follows: "That covers the case, gentlemen. Take *Page 48 the record and find a verdict. When you reach your verdict, and you must arrive at one of them, the foreman will write it on this indictment and sign his name as foreman, with the date," the complaint being that the Judge stated to the jury that they "must arrive" at one of four verdicts. When the Judge's charges are considered, as a whole (and they should be incorporated in the report of this case), the charge in this particular is not erroneous.
It is further alleged that the Judge erred in repeatedly insisting that the jury should agree upon a verdict, and that his illustrations, "taken in connection therewith," "clearly indicated to the jury his opinion that they should find against the defendant." The Court, inNickels v. Railway, 74 S.C. 141, 142, 54 S.E., 255, uses this language: "An examination of this charge will show that there was no request by the jury for its discharge; such being the case the law did not require the Circuit Judge to discharge the jury, especially as he had brought them into Court of his own motion. It is important that the trial of causes should be ended. A Circuit Judge is but discharging his duty to the public, and especially to the litigants, when he urges the jury to reach a verdict, provided nothing like coercion takes place."
In the case at bar, we cannot hold that there was coercion on the part of the trial Judge in an effort to obtain an agreement on the part of the jury; nor do we think that there was an intimation on the part of the Judge that the jury "should find against the defendant."
Error is further alleged in that, his Honor "further indicated to the jury the great necessity for reaching a verdict by disregarding minor things." This criticism seems to be based upon the Judge's statement to the jury that, he wanted to again charge the jury and would "do so at the risk that I might make some little slip in stating to you the law of the case" and on other expressions of similar purport. This statement and these expressions *Page 49 referred to, had no reference to the jury, and we think could not have influenced the jury, in any way, in their consideration of the case.
It is urged that his Honor further erred in stating to the jury his observations upon the case of the State v.Hoyt Hayes and his illustration of the rule of circumstantial evidence as deduced therefrom.
Respecting this alleged error, his Honor did not violate the provisions of sec. 26, art. V, of the present Constitution, as construed by this Court in Norris v. Clinkscales,47 S.C. 523, 25 S.E., 797, as follows: "We, therefore, conclude and hold that, as it would be impossible to declare the law applicable to a case on trial without connecting the legal principles involved with some state of facts, actual or hypothetical, it was the intention of the framers of the new Constitution, in amending sec. 26, art. IV, that the trial Judge in charging the law of the case should lay before the jury that law as applicable to a supposed state of facts; but that in so doing he should carefully avoid repeating the evidence or the facts at issue, making no statement of the testimony, either in whole or in part. We are clearly of the opinion that under section 26, as it now reads, a Judge may, in declaring the law applicable to the case, base that law upon hypothetical findings of fact by the jury, and instruct the jury that, if they believe so and so from the evidence they have heard, then such and such will be the legal result. In so doing, if he be careful not to repeat any of the testimony, nor to intimate, directly or indirectly, what is in evidence, he will be chargeable neither with stating the testimony nor with charging in respect to matters of fact."
It is alleged, further, that his Honor erred in refusing to set aside the verdict upon affidavits submitted "in regard to certain of the jurors who had been impanelled." After verdict and before sentence was pronounced, a motion for a new trial was made, and, in support of the motion, certain affidavits were offered in relation *Page 50 to alleged expressions of certain jurors, made before trial, hostile to the defendant. The affidavits were not served upon the jurors concerned, nor upon counsel for the State.
In the case of the State v. Hardy Harding, 2 Bay., 267, a motion for a new trial was made on three grounds: "1. Misconduct on the part of the foreman of the jury who tried the cause, in saying before the trial, `By God, he was one of the jury who was to try the prisoner, and he would hang him at all events.' 2. That he discovered new evidence since the trial, which, if it had been produced, would have evinced the prisoner's innocence. 3. That the evidence offered to the jury was not sufficient to warrant the conviction.
"After hearing the arguments of the counsel on all the different points, the judges were unanimously of the opinion on the first ground, that no affidavit should be received on a motion of this kind, to call in question the integrity of a juryman, or impeach his verdict, unless a copy of it had been served upon him, before the rising of the Court; * * * in order that such juryman might have an opportunity of exculpating himself, or otherwise satisfying the Court that he had not been guilty of any such misconduct as he had been charged with; and this was due, as well to the characters of the jurors of the country, as to the cause of justice itself." The Court refused the motion on second and third grounds, also.
The verdict in the case at bar is not without evidence to support it.
All of the exceptions are overruled.
Wherefore, it is ordered and adjudged that the judgment of the Circuit Court be affirmed.
May 9, 1910.