March 21, 1913. The opinion of the Court was delivered by The defendant was indicted for the murder of Wade Patterson, and convicted of manslaughter, and, this is an appeal from the sentence imposed upon him by the Court.
The exceptions will be incorporated in the report of the case, and will be considered in regular order. *Page 122
First Exception. The record shows that the following took place during the examination of the juror: "J.M. Rosier, juror, sworn on voir dire. Examined by the Court:
"Are you related by blood or marriage to James G. Seigler, the defendant in this case, or Wade Patterson, the deceased? Neither one. Have you formed or expressed any opinion as to the guilt or innocence of the defendant? Yes, sir. Do you mean to say that you have formed an opinion? Yes, sir; that is what I mean. That is, substantially; don't mean to say according to law and evidence, hearsay. You have formed an opinion? Yes, sir. Would that effect your verdict, as juryman, after you hear all of the evidence in this case and the law, as I would give it to you? Not a particle; not according to evidence. Can you give the State and the prisoner a fair and impartial trial? Yes, sir."
By the Solicitor:
"Is your opinion that you have formed such that it would take testimony to remove it; to change it? No, sir. It would not take any testimony to change it? It is only circumstantial. Is that opinion such that it would take testimony to remove it? Yes, sir; it would."
By Mr. Davis:
"Has any one talked to you in regard to the case? A lot has been said; nobody specially has been talking to me that was interested in the case. I have heard a lot of talk. You mean you have formed an opinion by having heard so much talk and seen so much in the newspapers, but you are willing to go by the evidence on the stand? Yes, sir. And you will disregard everything that has been said to you heretofore? That would not have anything to do with me. Do you believe in capital punishment? To a certain extent; where a man is proved guilty by witnesses I believe he is entitled to be punished, and if not, I believe he should be turned loose. Are you in favor of hanging any man for a crime? Yes, sir, if he does it in cold blood." *Page 123
Mr. Timmerman: "I think, in the interest of a fair and impartial trial, that it is necessary to have a juror that is free from bias, prejudice or anything that would tend to influence his mind when he goes into the jury room, except the testimony from the witness stand.
The Court: "I don't think this juror is competent.
Mr. Davis: "We think we had better except to your Honor's ruling as to Mr. Rosier, so that we may have the benefit of it.
The Court: "All right, Mr. Stenographer, note the exception."
The burden is upon the appellant to show, that the ruling of his Honor, the presiding Judge, that Rosier was not a competent juror, is not sustained by the testimony.
The presiding Judge occupied a more advantageous position that this Court, in ruling upon the competency of the juror, for the reason that he had the opportunity of seeing the juror, and of observing the manner in which he testified. In view of this fact, and the apparent contradictions in the testimony of the witness, the appellant's attorneys have failed to satisfy this Court, that the ruling of the presiding Judge was erroneous.
Second Exception. There was other testimony introduced without objection, showing that Patterson was a policeman, at the time of the homicide. The defendant testified, that he knew Patterson was a policeman, and that he had been on the force for years. And T.R. Morgan, a witness for the State, testified that Patterson had been on the police force, something over twenty years — thus rendering unnecessary further testimony showing that Patterson was a policeman. Therefore, even if there was error, it was not prejudicial. But apart from this fact, the exception is without merit, and does not require further consideration.
Third Exception. In the first place, as the defendant was not convicted of murder, but only of manslaughter, the *Page 124 charge was not prejudicial to his rights. But in the second place, the case of the State v. Davis, 50 S.C. 405,27 S.E. 905, shows that even if the appellant had been convicted of murder, the exception could not be sustained.
Fourth Exception. Conceding that there was error, on the part of the Circuit Judge, in charging that "a man must be without fault, in bringing about a difficulty," nevertheless, as the defendant was only convicted of manslaughter, the error was harmless. State v.Richardson, 47 S.C. 166, 25 S.E. 220; 35 L.R.A. 238.
Fifth Exception. In so far as the exception assigns error, in the refusal to charge: "And this is the case even where the man who does the killing is in fault in bringing about the difficulty," it can not be sustained, for the reason that the defendant was not convicted of murder but of manslaughter. Those words were inserted in the request, for the purpose of showing that under the circumstances therein mentioned, the defendant would only be guilty of manslaughter, and not of murder.
As, however, he was not convicted of murder but of manslaughter, there was no prejudicial error, even conceding that the refusal to charge was erroneous.
For the same reason, the other assignment of error stated in the exception must be overruled.
Sixth Exception. When that portion of the charge embodied in the exception, is considered in connection with the entire charge, it will be found to be free from error, especially when considered in connection with the charge: "That if you find that the deceased arrested the defendant for violating a city ordinance when none has been violated, such arrest would be illegal, and that if the defendant killed the deceased in self-defense, then the killing would be neither murder nor manslaughter, and it would be your duty to find a verdict of not guilty."
Judgment affirmed. *Page 125