March 9, 1911. The opinion of the Court was delivered by The appeal herein is, from the sentence of death, imposed upon the defendant, John Crosby, for the alleged murder of Ed Acker.
The exceptions will be set out in the report of the case.
First Exception. Motions for continuance are addressed to the presiding Judge, and the refusal to grant such motion is not the object of appeal, unless there was an abuse of discretion, which has not been made to appear in this case. State v. Pope, 78 S.C. 264,58 S.E. 815.
Second Exception. The jury had not then been empanelled, and we fail to see wherein the remarks of the presiding Judge, in refusing the motion for continuance, were in violation of article V, section 26, of the Constitution, prohibiting Judges from charging juries, in respect to matters of fact. Furthermore, the affidavit of A.M. Bailey, which was afterwards introduced in evidence, was prejudicial rather than favorable to the defendant.
Third Exception. After his Honor, the presiding Judge, excluded the testimony mentioned in the exception, the defendant was allowed to testify as to similar facts, without objection.
Fourth Exception. In the first place, we fail to see the relevancy of the testimony which the defendant's attorneys sought to elicit from the witness. And in the second place, the extent to which an attorney shall be permitted to cross-examine a witness, is limited by the presiding Judge, and his ruling in this respect is not appealable, unless there has been an abuse of discretion, which does not appear in this case. *Page 106 Fifth Exception. This exception must be overruled, for the reason that the charge was a correct statement, in a general way, of the law of self-defense; and, if the defendant desired to avail himself of any special rights, arising out of the fact, that he was on his own premises, at the time of the homicide, he should have presented a request embodying a proposition, to that effect.
Sixth Exception. When the charge is considered as a whole, it will be seen that this exception cannot be sustained.
Seventh Exception. What has just been said disposes of this exception. Furthermore, the appellant has no cause to complain of the definition of malice, as the burden which rested upon the State, to prove malice, was made greater than the law requires.
Eighth Exception. In the first place, the exception is too general, but waiving such objection, it cannot be sustained when the entire charge is considered.
Ninth Exception. There was testimony to the effect that the defendant was drunk, and the presiding Judge charged as to the effect of drunkenness, in its different stages. Calling one stage "crazy drunk" does not entitle the defendant to a new trial.
Tenth Exception. When the charge is considered in its entirety, this exception cannot be sustained.
Eleventh Exception. This exception cannot be sustained, for the reason that, whether his Honor, the presiding Judge, was in error or not, in charging that a man's being "crazy drunk" would be no excuse for crime, defendant's own evidence showed clearly that he was not "crazy drunk," in the sense that he did not know what he was doing, as he gave, while on the stand, a full and detailed account, of what took place, at the time of the homicide.
Twelfth Exception. What has already been said disposes of this exception. *Page 107
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed, and that the case be remanded to that Court, for the purpose of having another day assigned, for the execution of the sentence.