On Petition For Rehearing
Mr. Acting Associate Justice Marion :The opinion of the Court heretofore filed was prepared by ■ the writer after painstaking examination of the record and careful consideration of the points raised by the 32' exceptions. That no material question either of fact or of law overlooked or disregarded is, as 'he apprehends,, conceded by the members of the Court who are now disposed to grant á rehearing upon the ground that the points raised by Exceptions 9 and 14 were erroneously decided. In deference to these Justices, for whose views he entertains profound respect, as well as from a desire to give the appellants the benefit, of any substantial doubt in the determination of the points raised by this appeal, the writer has reexamined and reconsidered the question raised by these exceptions. Inasmuch as the result of such reconsideration has been to confirm, rather than to unsettle, the writer in the opinion that those questions were correctly decided, it is perhaps in order that these particular exceptions (9 and 14) should be somewhat more fully discussed and argued than was deemed necessary in the preparation of the opinion filed.
The portion of the record upon which exception 9 is grounded is as follows:
“Q. Now, Mr. Gosnell, you say that three hats were found at the camp place? A. No, sir; I just saw two.
*103“Q. And you say they were identified by Mr. Hoi Howard as belonging to somebody?
“Mr. Bowen: I object to what Mr. Hoi Howard did, because the defendants were not there. What Mr. Howard did would certainly be incompetent as to the defendants.
“The Court: Well, Mr. Solicitor—
“The Solicitor: I don’t want any conversation. I just want the substantive fact that they were identified -as belonging to two certain people on the way to the distillery by Mr. Hoi Howard.
“Q. Were these hats identified by Mr. Hoi Howard? A. Yes, sir.
“Q. As belonging to Alex Pittman?
“The Court: Hold on. The fact that they were identified is competent.
“Q. Well, were they identified? In consequence of what he told you, were you looking for Alex Pittman at the distillery? A. Yes, sir.
“Q. In consequence of what he told you, you expected to see Alex Pittman and Holland Pittman at the distillery? A. You got that wrong about Holland; I said Fred.
“Q. Fred and Alex? A. Yes, sir.
“Q. There were three at the camp and Holland’s was the third one? A. I never said there was three. I said this: That the two hats were identified, one as being—
“The Court: Hold on. Don’t say what was said by way of justification.
“Q. They were identified. In consequence of that identification you were looking for Alex Pittman and who else at the distillery? A. Well, Alex Pittman and Fred Pittman.
“Mr. Bowen: All of that is objected to.”
The opinion thus disposes of this exception:
“It is further charged (exception 9) that the trial Court erred in permitting the witness, Gosnell, to testify that certain hats found at the camp near the distillery were *104identified by the deceased, J. H. Howard, and as a result of such identification the witness was expecting to find Alex Pittman at the distillery. The objection interposed at the trial was to ‘what Mr. Hoi Howard (the deceased) did, because the defendants were not there.’ The Court ruled that the fact that the hats were identified was ‘competent,’ but excluded an answer to the Solicitor’s question as to whether they were identified ‘as belonging to Alex Pittman.’ Thereafter the Solicitor asked the witness, if, in consequence of what was said by the deceased, he (the witness) was ‘looking for Alex Pittman at the distillery.’ No objection was interposed in apt time by defendants’ counsel, and the question was answered in the affirmative. Thereafter the Court, sua sponte, admonished the witness: ‘Don’t say what was said,’ etc. No motion was made to strike the testimony thus elicited as to the witness’ exception of finding Alex Pittman and Fred Pittman at the still. If it be conceded that the admission of this testimony was tantamount to the admission of declarations of the deceased to the effect that one of the hats found was the property of Alex Pittman, its admission may hardly be justified under any of the recognized exceptions to the hearsay rule. But the absence of objection on that ground in apt time indicates that its admission was not so regarded by defendants’ counsel at the trial. There is the further consideration that objection to this testimony in the form elicited — that Gosnell was expecting to find Alex Pittman at the still — might well have been withheld upon the ground that it had an obvious tendency to weaken the force of Gosnell’s identification of ‘the other man’ who ran from the still as Alex Pittman, upon the more or less valid theory that men engaged in a quest of this character usually see and find what they expect to see and find. In any view, the record does not disclose that the appellants are in position to claim that the trial Court committed prejudicial error with respect to the admis*105sion of this testimony, and the exception so charging must be overruled.”
That there was no proper objection in due time to the testimony which appellants claim was.erroneously admitted would seem to be entirely apparent from a fairly careful reading of the portion of the record set out above. It is true that timely objection was made to the answer of Reuben Gosnell to the question: “And you say the hats were identified by Mr. Holland Howard as belonging to somebody?’’ And it is true that the Court permitted the Solicitor to elicit an affirmative answer to that question — to the innocuous effect that the hats were identified as belonging “to somebody.” But the Court expressly refused to permit an answer to the question: “As belonging to Alex Pittman?” That is, the Court, instead of admitting,. expressly excluded the very testimony which appellants now say was admitted in the indirect and inferential form of permitting the witness Gosnell to answer a question subsequently propounded as follows: “In consequence of what he then told you, you were looking for Alex Pittman at the distillery?” But to that question, and its answer, the defendants interposed no objection. It is true that, after this question had been answered without objection, defendant’s counsel is recorded as saying, “All that is objected to”; but no motion to strike was made nor any other ruling asked. It would seem perfectly clear that objection was not made in apt time to the introduction of this testimony upon the ground that it was “hearsay” or upon any other ground. An answer to the question in the form propounded would directly disclose a mental condition or attitude of the witness and would only inferentially and indirectly involve a violation of the hearsay rule, and, as pointed out in the opinion, objection by the defense or interposition by the Court might well have been withheld on the ground that an affirmative answer would disclose such a preconception of the situation at the still as would seriously weaken the force of Gosnell’s identification *106of the other man who ran therefrom as Alex Pittman. It would seem equally clear, therefore, especially in view of the trial Judge’s attempts, sua sponte, to exclude “hearsay” statements in the examination of the witness Gosnell, that to hold the Circuit Judge guilty of reversible error of law in letting in an answer to a question to which no objection was interposed in due time, or in refusing to strike out when no such ruling was requested, would be to convict the careful Circuit Judge of error of law which he did not in fact commit, and which in fairness should not be imputed to him. Such holding, I think, cannot soundly be squared with any applicable judicial'rule or precedent.
The only other ground for predicating a reversal upon the admission of this testimony would be upon the theory that this Court should in favorem vita take the view that regardless of whether it was properly'objected to or whether the trial Court committed any error with respect to its admission, the testimony itself was objectionable and inadmissible under the rules of evidence, and defendants should be given the benefit of that position in the consideration of their apppeal. Laying aside the consideration that this Court has no power of review in such a case save for the purpose of correcting “errors of law” — that is, errors committed by the trial Judge — -even if there had been an erroneous ruling by the trial Court with respect to the admission of this testimony, I am satisfied that its admission could not have worked any substantial prejudice to the defendant, Alex Pittman.
The fact which, in its hearsay aspect, this testimony tended to establish, was that the hats of Alex Pittman and his son, Fred Pittman, were found in the lookout camp a quarter of mile from the still which was the scene of the homicide. The state’s case against Alex Pittman turned upon whether he was the other man who ran from the still immediately after the killing of Howard. This defendant had made that the decisive issue by setting up' the plea *107of alibi and testifying that he was at his home six miles away from the still when Howard was killed. The fact that two hats, the property of Alex Pittman and Fred Pittman, were found at this camp had no more probative force, in itself, to establish Alex Pittman’s presence at the still at the time of the homicide than it had to establish Fred Pittman’s presence — and no contention was made that it had any such force as to Fred Pittman. It was a fact which was entirely consistent with Alex Pittman’s absence from the still when Howard was shot, and with the truth of his alibi. On the other hand, the alleged fact as to the hats was no essential, or even material, part of the proof upon which the State relied to establish that Alex Pittman was the other man who ran from the still. That proof consisted primarily in the identification by the witness, Gosnell, through his senses of sight and hearing, of the other man who ran as Alex Pittman. That proof was strongly corroborated by the undisputed fact that the defendant, Holland Pittman, an unmarried son of Alex Pittman living with his father, was found at the still and was captured as he ran therefrom immediately after the shooting of Howard, by the facts that no evidence was adduced by the defense as to the identity of the other man, and that Holland Pittman had made false and .contradictory statements as to who this man was, and by the evidence as to Alex Pittman’s previous record as an illicit distiller. A finding of fact that the other man who fled from the scene of the crime was Alex Pittman was in no wise dependent upon the circumstance that his hat was found in the camp a quarter of a mile from the still; such circumstances was not an essential link in any chain of circumstantial evidence, and at best it can be regarded as no more than a fragile strand in an evidential cable to which it contributed little, if any strenght. If it afforded any basis for an inference tending to support Gosnell’s identification of Alex Pittman, it was merely one circumstance among *108other corroborative facts in the light of which it fades into utter insignificance.
But since all such facts, however significant, were merely incidental, subsidiary, and corroborative upon the issue as to the identity of the other man who ran from the still, and inasmuch as the state’s case rested primarily upon Gosnell’s identification, by sight and hearing, of this man as Alex Pittman, it is obvious that it was of vital interest to this defendant to discredit Gosnell’s testimony to the effect, in substance, that he saw Alex Pittman and heard his voice at the still on the occasion of the homicide. The most reasonable if not the only theory upon which to discredit Gosnell’s identification by sight and hearing was that his eyes saw and his ears heard what his mind saw and heard or expected to see and hear; that is, that Gosnell’s identification was the product of prejudgment, suspicion, and conjecture, and not of what he actually saw and heard at the scene of the homicide. The testimony here under consideration tended directly to- establish the very psychological condition on the part of Gosnell which would tend to support that theory, and which would most strongly militate against the trustworthiness of his identification. Instead of excluding it, therefore, Alex Pittman might very wisely have invited its introduction. In no view, therefore, can th admission of this testimony soundly be held to have worked such prejudice to the defendant, Alex Pittman, the only defendant upon whose defense it could have had any bearing whatever, as would justify a reversal.
Exception 14 predicates reversible error upon the following charge, given at the State’s request:
“I charge you that if you find that either the defendants has made false or contradictory explanations of incriminating circumstances, such fact in connection with the other circumstances may be sufficient to warrant the inference of his guilt. That is true likewise where he had made false and improbable or contradictory statements with *109regard to the occurrence and as to his whereabouts; it being always a matter for the jury to decide whether such evidence convinces them beyond a reasonable doubt of the guilt of' the accused.”
In the opinion filed the exception to this charge is thus disposed of :
“As an abstract proposition the charge was not erroneous, and we cannot say that the effect giving the instruction was so unduly to stress one of the State’s contentions of fact— the only plausible ground of criticism — as to amount to an abuse of the Court’s discretion in the conduct of the trial. See 16 C. J., 960.”
It is now suggested that the charge complained of “amounts to a charge on the facts.” That is not the error specified in the exception as formulated for the consideration of this Court. The error imputed to the trial Judge is that he so charged “after he had admitted in evidence the testimony of Reuben Gosnell and E. N. Austin (as to) admittedly false and contradictory statements made by the defendant, Holland Pittman, when it was frankly admitted by the witnesses for the State that said statements were made under extreme duress and were not free and voluntary, and was thereby highly prejudicial to the rights of the defendants.” The question as to whether these statements should have been excluded as made under duress is considered and passed upon in disposing of other exceptions. But, waiving the objection that the point that this charge trenched upon the facts is not raised by the exception, the writer is unable to perceive wherein the charge is open to valid criticism from that point of view. No fact is .assumed as proved. Upon the hypothesis that the jury should find a certain fact — which there was evidence tending to establish —the instruction merely announces the correct proposition or conclusion of law that such fact “in connection with the other circumstances may be sufficient to warrant the inference” of guilt. Any relevant and admissible fact adduced *110in evidence by the State on such a trial is necessarily a fact from which as a matter of law an inference of the defendant’s guilt may properly be drawn; otherwise, such fact has no legitimate place in the evidence.
Unless, therefore, this Court is prepared to go even farther afield and hold that the instruction should have been refused upon the broad ground that the evidential facts and circumstances were insufficient to warrant the inference of the defendant Holland Pittman’s guilt, there could be no error in charging that the inference of guilt could be drawn if a certain fact were found, “in connection with the other circumstances” of the case. The charge contains not the slightest reference to or expression of opinion as to the weight and sufficiency of any evidential fact or facts, beyond announcing the entirely correct proposition that such fact or facts “may be sufficient to warrant the inference” of the defendant’s guilt; the Court adding in that connection, “it being always a matter for the jury to decide whether such evidence convinces them beyond a reasonable doubt of the guilt of the accused.” See, generally, State v. McIntosh, 40 S. C., 349; 18 S. E., 1033. State v. Taylor, 56 S. C., 360; 34 S. E., 939. State v. Duncan, 86 S. C., 370; 68 S. E., 684, Ann, Cas., 1912-A, 1016. State v. Way, 76 S. C., 91; 56 S. E., 653 and State v. Wiliams, 115 S. C., 245; 105 S. E., 343.
It would seem clear, therefore, as suggested in the opinion heretofore filed, that any plausible criticism of the instruction would have to be predicated upon the ground that it unduly stressed one of the states’s contentions, of fact by directing attention to a particular phase of the evidence. That is, that by thus calling attention to a particular phase of the evidence, the Judge indicated that it was entitled to peculiar weight, and thereby intimated his opinion as to its force and sufficiency. I know of no rule or precedent for the proposition that, by stating a certain fact or facts hypothetically for the purpose of declaring a principle or *111proposition of law applicable to a case, the trial Judge thereby indicates his opinion as to the weight and sufficiency of the evidence tending to prove such facts. If that were the 'law, it is obvious that no charge based upon 'a hypothetical statement of facts which did not include all the facts which there was evidence tending to establish, could ever be sustained. In the absence of any warrant for condemning the charge upon that general ground there is, in the writer’s opinion, no substantial basis for holding that this charge was upon the facts. The charge merely called for an application to facts hypothetically stated of the familiar legal maxim, “falsus in uno, falsus in omnibus.” The rule recognized in a number of jurisdictions, in which, as in this State, a charge upon the facts is prohibited, is thus stated in 16 Corpus Juris, 960, § 2348:
“It is proper for the Court to suggest to the jury that-, if accused has uttered false exculpatory statements, they 'may, but need not necessarily, infer his guilt therefrom.”
In our case of State v. Howard, 32 S. C., 91, 96, 97; 10 S. E., 831, a charge which was, in substance, to the effect that the jury could infer guilt from defendant’s “lying” about his whereabouts at the time of the commission of a crime was held not to indicate the Judge’s “opinion of the facts,” and not to be a charge upon the facts. While that case was decided under the Constitution of 1868 (Art. 4, § 26), which permitted the Judge to state the testimony, the constitutional inhibition against charging “with respect to matters of fact” was the same' as in our present Constitution (Article 5, § 26), and upon the point here involved — whether a charge of this character is tantamount to an expression of opinion as to the weight and sufficiency of evidence — the decision in State v. Howard is not without pertinent bearing. In the very recent case of Willcox, Ives & Co. v. Jeffcoat, 135 S. C., 149; 133 S. E., 463 (filed June 1, 1926), the trial Judge was held guilty of reversible error in refusing to charge without modification *112that “the failure or refusal of a party to produce evidence peculiarly within his knowledge and control, which would have an important bearing upon the facts in dispute, warrants the inference that it would be unfavorable to his' contention.” If the Court must so charge as to the fact of a mere failure to produce evidence, there would seem to be no good reason for condemning a charge which merely permits the jury to draw such unfavorable inference from the fact, hypothetically stated, that a party has made false statements as to matters peculiarly within his own knowledge — especially when such charge authorizes the drawing of the unfavorable inference only “in connection with the other circumstances” of the case.
For the foregoing reasons, hurriedly stated, the. writer is unable to agree that there is either technical or substantial ■merit in the points raised by exception 9 and 14.
As to the defendant Holland Pittman, the writer deems it not improper to say that the record perhaps affords some ground for the view that the ends of justice might be at tained by the infliction of a less severe punishment than the death penalty. But that is a question for the consideration of another department of government. Certainly this record furnishes no substantial basis, in the writer’s opinion, for a conclusion that the judgment of the trial Court was in any wise influenced by any error of law which, in the discharge of the sole function committed to it by the Constitution, it is the duty of this Court to correct by the granting of a new trial.
Messrs. Justices Watts and Cothran and Mr. Act^ing Associate Justice Purdy concur. Mr. Chiee Justice Gary did not participate.