6768

#### STATE v. MILLS.

1. Continuance. — Refusal of continuance because of absence of several witnesses for defense and inability of his wife to be present, it then appearing that she was in a foreign State, and no reason for her inability to be present being there stated, but afterwards the reason was given to be her pregnancy, *held*not an abuse of discretion under facts here. The wife came into court before defense was closed and remained during the rest of the trial.

*1882. Jury. — That jury commissioners laid aside names drawn by them from the jury box as in their opinion not suitable to act as jurors— some were illiterate, some not known to them, some rowdy, drinking —will not render venire illegal.

3. Evidence — Dying Declarations. — Declarations of deceased that he only had a knife on his person as a part of a connected statement, properly admitted here because no motion was made after its reception to strike out as not a part of a dying declaration, and because it was not disputed that deceased had only a knife on his person.

4. Ibid. — Witness—Contradiction.—That deceased told the witness that he had been intimate with the wife of deceased is not admissible to contradict his dying declarations or the statement of a witness for the State.

5. Ibid. — Ibid.—Ibid.—A defendant when sworn in his own behalf may be asked about any of his past transactions tending to affect his credibility, but not about such as affect his character in other respects. Here evidence of the latter kind permitted to remain, because when objection was made there was nothing to show the ride would be violated, .and afterward no objection was made to the incompetent part.

6. Charge. — A hypothetical statement of the facts in issue in a case, if so stated as to admit of only one inference, is not a charge on the facts.

7. Ibid. — It is not error to instruct jury that they dare not go beyond the jury box in considering testimony offered.

Before Purdy, J., Cherokee,

June, 1907.

Affirmed.

Indictment against W. H. Mills for murder of Flunk Deal. From sentence on verdict of guilty with recommendation to mercy, defendant appeals.

*Messrs. Stanyarne Wilson*and *J. C. Otts,*for appellant.

*Mr. Wilson*cites: *Jury illegally drawn:*33 S'tat., 1066 ; 77 S. C., 350. *Declaration of deceased that h\e only had a knife is not a dying declaration:*4 Ency. Ev., 1005 ; 56 S. C., 586; 58 S. C., 351. *Dying declarations may be shown to be fallacious:*10 Ency., 383; 4 Ency. Ev., 1013; 5-6 S. C., 588. *Rule of cross-examination as to past transactions:*77 S. C., 343; 34 S. C., 39; 36 S. C., 130. *Statement, “If*
      *189
      *yon find these to be the facts in the case,” is charge on the facts:*76 S. C., 63; 47 S. C., 461; 57 S. C., 340; 51 S, C„ 460; 61 S. C., 563 ; 63 S. C., 515; 65 S. C., 331; 68 S. C„ 161; 71 S. C., 159.

*Mr. Otts*cites: *Jury improperly drawn:*S3 Stat., 1066; 24 Ency., 219; 3 Bkuckf., 37; 5 Park. Cr., 30-8; 130 N. C., 229; 25 Ter. Cas., No. 1, 4829; 12 Ency., 334; 63 S. C., 548; 22 Stat., 687; 1 Browne, 121. *Statements of deceased in contradiction of dying declarations corrupetent:*56 S. C., 578, 360; 18 Ga., 194; 56 S. C., 434; 43 S. C., 62; 58 S. C., 356; 35 S. C., 32; 17 E. R. A., 654. *Rule of cross-examination as to past transactions:*76 N. Y., 288; 1 Green. Ev., 444b, 449, 499d; 2 Phil, on Ev., 943; 7 N. Y., 378; 3 App. Div., 127; 3 E- A. R., 535; 161 U. S., 85; 34 S. C., 38; 33 S. C., 502; 26 S, C, 117; 2 Mill., 174; 76 S. C., 116; 78 Ala., 474; 76 N. Y., 288; 27 N. Y., 571; Underhill on Cr. Ev., Secs. 60-61; 3 W'bart. Cr. Ev., Secs. 323, 430, 432, 433, 465, 475; Rice on Ev., 269-314; 2 Taylor on Ev., 1465; RoiScoe on Cr. Ev., Secs. 232-234; 11 Wend., 19; 161 U. S., 85; 29 Vt., 25; 101 Wis., 627; 146 Mass., 512; 6 Id., 383; 106 Col., 83; 26 Midi., 157; 67 Miss., 333; 11 Gray, 450; 66 Me., 116; 68 Col., 101.

*Solicitor T. S. Sease*and *Butler*& *Osborne,*contra.

*Butler*& *Osborne*cite: *No abuse of discretion in refusing continuance:*58 S. C., 335; 56 S. C., 378. *No illegality in drawing jury:*77 S. C., 250; 75 S. C., 296; 73 S. C., 518; 68 S. C., 500. *The whole of dying declaration should be admitted and then incompetent parts stricken out on motion:*43 S. C., 148; 58 S. C., 335. *Dying declaration should not be contradicted by previous contrary statement:*56 S. C., 368, 576. *Right of cross-exanmnation of defendant:*56 S. C., 533; 26 S. C., 119. *Charge excepted to not on facts:*59 S. C., 246, 303; 58 S. C., 380 ; 47 S. C., 488; 55 S'. C., 100. *,*

*190February 25, 1908.

The opinion of the Court was delivered by

Mr. Justice Gary.

The defendant was indicted for the murder of Frank Deal, and the case was tried before his Honor, Judge Purdy, and a jury, on the 26th of June, 1907. The jury rendered a verdict of guilty, with recommendation to mercy, and he was sentenced to imprisonment far life.

The first assignment of error is, that his Honor, the presiding judge, refused the defendant’s motion for a continuance.

1 The following statement appears in the record: “Upon the call of the case for trial, defendant’s attorneys -moved for a continuance upon the ground of the absence of -three witnesses, including Mrs. Lola Mills, defendant’s wife. In this motion, defendant’s attorneys did not claim that Mrs. Mills was. not able to testify by reason of being pregnant, -but the ground for continuance, so far as it related to her, was solely on the ground, as- stated by them, that they could not have her at court. In support of their motion, they submitted 'affidavits and letters. Attorneys for the State submitted counter-affidavits, letters and 'communications, as well as oral testimony. After consideration of same, -the Court ordered- -thait the case proceed to trial. After this ruling was made, one of the attorney® for the defendant made reference to the alleged condition of Mrs. Mills, but was- fold by the judge that this statement was insufficient, but that he could file an affidavit to- that effect, which- was done after -cou-rt reconvened in the afternoon, and the motion for a continuance was renewéd on this ground, and was overruled -by the judge. After testimony on both sides Was closed, Mrs. Mills, who was in Gaffney, before defendant closed -his case, came into the court-room -and from) that time on, till the verdict was rendered, sat with the defendant during the further proceedings and arguments. Mrs-. Mills appeared to be reasonably •strong* 'and -did not appear to be overcome physically by the ordeal of sitting during -the pro*191ceedings of the Court.* Mrs. Mills wore a maternity cloak, sand while apparently pregnant, there was no means of determining the state of such pregnancy.”

At the time the motion was made Mrs. Mills was in North Carolina, and therefore was not within the jurisdiction of the Court. She gave birth toi the child on the 6th of October, 1907. The appellant’s attorneys have failed to satisfy-this Court that there was an abuse of discretion in refusing said motion.

The next assignment of error is, that the presiding judge overruled ¡the motion of the defendant’s attorneys, to- quash the venire.

2 Before the jury was impaneled, the defendant’s attorneys made a motion to quash the venire, on the ground “that the jurors were selected in a different way from that prescribed by statute; that names were drawn out of the box that were not put on the venire, and that the venire was composed of mien that they -selected, and that they discarded the names of men as jurors for reasons other [than those prescribed by the statute, to wit, absence from' the county or unable to attend Court.”

Upon the request of the appellant’s attorneys, W. D. Camp, the County Auditor, was placed upon the stand, and testified as follows:

> “Q. You were the auditor of the county when this- panel was drawn? A. Yes, sir. Q. Squire, how many names were drawn out of the box altogether.' A. I don’t know how many were drawn out altogether. We would take out a namla and we would generally consult whether we knew that man and his character ‘and whether he was a fit man to be on the jury. If he was not, we Would take his. name out and lay it aside. Q. How many names did you reject that way ? A. I have no idea about that. Q. That is what we want ta know. A. When we refused one, didn’t think he was qualified as a legal juror, we would lay it aside until we got our number. Q. What test did you apply in determining whether he was a proper man for -a juror or not? *192A. We generally wanted to know him, whether there was any legal objection to him. Q. If you didn’t know him you objected ? A. Sometimes. Q. When you didn’t know him at 'all you would reject them? A. No; not on 'that ground alone. Q. When you didn’t know, him what other ground did you have ? A. Where we didn’t know whether he had a good character. Q. Then you rejected him? A. Yes, sir. Q. How many of that kind did you reject, because you didn’t know them? A. I have no idea how many. Q. Did you reject a half a dozen on that ground? A. Not any one in particular., Q. On the ground you didn’t know him? A. I don’t think we did/ Q. You do not know how many you rejected on that ground? A. Do not know. *Q.*You rejected some on the ground that you did not know them? A. Yes, sir. Q. Did you reject any others on any other ground? A. I don’t remember 'any particular grounds. Q. Why 'did you reject the others? A. We didn’t think be was a competent man to serve on the jury. Q. Competent in what way? A. In our judgment we thought he would not be a good juror; didn’t have judgment, illiterate man. Q. Only mien who had judgment and were not illiterate could serve on the jury? A. No; we thought we tried to pick the best men we could in the county. *Q.*In other words, you selected the jury out oif those names which you draw out ? A. We rejected mien we thought perhaps might not he competent to sit on a jury. Q. O'n what ground? A. Ota the grounds discussed — we would discuss the matter between ourselves. Q. I want to know on what ground? A. If we knew the man was a drunkard. Q. Howl many of that kind did you reject ? A. I don’t know that; we never counted the names that we rejected. Q’. You did reject some? A. I do not knoiw how many 'because of drinking liquor. Q. You didn’t think for that reason that they ought to sit on' die jury? A. Rowdy man. Q. You don’t know how many you rejected on tha/t account ? A. No. Q. On what other ground did you prevent them from sitting on the jury? A. I don’t know. Q. Oan you give me the names *193of the men you rejected? A. No, sir. I just laid them •down there; laid them aside. Q. I ami trying, to get at the ground, you thought were incompetent, those you knew you rejected? A. I don’t recollect any particular kind of excuse.. Q. Some you rejected’ on the ground that you thought, as you say, were illiterate men, mien that could not read and write? A. That we thought tod sufficient information. Q. So you rej ected some because you didn’t know them, and you rejected others because they were illiterate and you thought didn’t have -sufficient information to serve as a juror? A. I thought pretty near every man in the county -was known by one of us. Q-. That was the method you all adopted in- selecting a jury out o,f those names Ithat were drawn out of the box? A. We -consulted ¡as to- whether they were proper mien. I-f he was not -competent -then- we rejected him-.- Q. In arriving at that conclusion as. to whether they were proper men- or not, men whom you didn’t knowi, ’that none of you knew, to be a- good juror? A. We might have done that as one reason, perhaps. Q. Those you didn’t think could read and write or had sufficient information, why then- you p-ut them aside? A. I suppose -so.”

Section *2,*of the A'c-t of 1902, 23 Stat., 1066, provides that the county auditor, -county treasurer -and -the -clerk of court shall prepare a list of the qualified electors-, under the provisions of the Cbu-stitution, -between- .the ages of twenty-one and sixty-five years, and of good moral- character, as they mlay deem otherwise well qualified' to serve as jurors, being persons of sound judgment and free fromi all legal exceptions.

Section 4 provides that the jury -commissioners shall draw from the jury box eighteen ballots -containing the names- of eighteen persons who shall constitute the grand- jury; that “if there shall be -drawn from -said box a ballot containing the name of any person not between the ages of twen-tyKme and sixty-five years, or not of goo-d moral -character, -o-r is otherwise disqualified- to serve es a juror, suich ballot -shall be destroyed and such name struck from the said list, and *194another 'ballot drawn, and so on, until the eighteen are secured.” The petit jury is drawn in the sarnie manner.

Section 7 is -as follow!»: “That all jurors shall be selected by drawing ballots from the said jury box, and, subject to Hie exceptions hereinbefore contained, the person® whose names are on the ballots so drawn shall be returned to- serve as jurors.”

Section 14 is as follows: “That the jurors drawn and summoned under the provisions of this act must have the qualifications that are now, or may hereafter be prescribed by law.”

When the -testimony oif the auditor is considered in its entirety, we are unable to discover .anything except the honest effort of a faithful officer to allow none but those possessing the qualifications prescribed *by*statute to serve as jurors, for which he is to be -commended. The jury commissioners are allowed the same discretion under Section 4 as is conferred- upon them 'by Section 2.

It i® n-ot contended that .any of the .persons drawn to serve as. jurors were disqualified, and -even if there were irregulalaritie-s, they- are not -such as to render the venire illegal. *Rhodes*v. *R. R.,*68 S. C., 494, 47 S. E., 728; *State*v. *Smalls,*73 S. C., 519, 53 S. E., 976; *Hutto*v. *R. R.,*75 S. C., 295; *State*v. *Smith,*77 S. C., 248.

3 The third exception is- as follows: “That his- Honor erred in permitting testimony of the witness, Caldwell, for the State -over' defendant’s objection', that deceased stated .to him that the only weapon he had was a knife and -that it was in his pocket, the error being that such declaration was incompetent -and not 'admissible as part of dying -declaration'.”

The question arose in the following manner:

> “Q. State whether or not you felt -about hi-s person and asked him whether he had a weapon. A. Yes, sir. Mr. Wilson: W'e -object on the ground that that is not competent as a part of the dying declaration. Count: Anything he said *195at that time as a connected statement would be competent. Exception -noted. Q. What did you ask 'him about weapons ? A. I asked him if he had any knife and he said yes, he had one in his packet. Q. Did' you feel in his pocket then? A- Yes, sir; I unbuttoned his overalls and it was- in his left-hand pocket. I didn’t take the knife out. Q. Did you later take it out of his pocket? A. I did not. Q. State whether or not you saw anybody else? A. Yes, sir. The coroner took it out.”

It will be observed that the only objection was to the question: “State whether or not }”ou felt about his person, and asked him whether he had any weapon.” The appellant’s attorney neither made a motion to strike out that portion of the dying declaration which they deemed objectionabel nor did they move the Circuit Judge to instruct the jury to disregard such portions. *State*v. *Petsch,*43 S. C., 132, 20 S. E., 993.

Furthermore, the fact that the knife was the only weapon on the pei'son of the deceased when- he was shot does not seem to have been in dispute.

4 The next assignment of error is that the presiding judge refused -to allow defendant’s ydtnesses to testify that the deceased told them of his intimacy with Mrs. Mills, the object of. such testimony being to contradict the dying declarations and the witness, Mrs. Williams, who testified that the deceased and Mrs. Mills were not intimate while at -her house.

It is only necessary to refer to the cases of *State*v. Taylor, 56 S. C., 360, 34 S. E., 939, and *State*v. *Stuckey,*56 S. C., 576, 35 S. E., 263, to show that the exceptions raising this question can not be sustained.

*196
      5
      *195The sixth exception is as follows: “That his Honor erred in permitting the State, over defendant’s objection, to examine defendant -as to difficulties he had been involved in years before, at various places in this State and others, the ruling being, ‘this is subject to the same rule that a witness *196would be on cross-examination. You -can crass-'examine a witness as to his past life and conduct, in order to- shio-w- the jury the -character of the witness; the error being that it was not competent to- thus attack defendant’s reputation- for peaceableness when he had- not put it in issue, and it was not -competent or proper to thus burden the case with offenses, not in anyway -connected with this indictment.”

This question- arose as follows-: “Q-. Did you ever live in- Durham, North Carolina? A. Yes, -sir. Q. You know Mr. *It.*A. Dlemp-sey? A. Yes-, sir. Q. You got in -some trouble in Dtaribam, didn't you? A. What kin-d of trouble? Mr. Wilson: We o-b-ject to asking this witness about some trouble be got into in Durham'. The Court: Thi-s is subject to the same rule that a -witness would be on cross-exatmination. You can -examine- a witness- as to his past life- and conduct in order to show the jury the charac-ter of the witness. I have no idea wh-at this trouble was. I apprehend the details o-f it will not be gone into-. Mr. Butler: I ami not going into detail®. Q. You got into trouble there, and did you not lea-ve the town very early next morning -and you spent the night with Mr. Dempsey ? A. No, s-ir.. Not very early. Q. What train? A. Somewhere along about ten o’clock. Q. About the first one that went out? -A. No, sir. It went out about ten o’clock. Q. Who was the man you cut ? A. I don’t know. Q. Did you ever live in Atlanta ? A. Yes, -sir. Q. You worked for the Pulton Bagging and Gottorn^Mill -Company? A. Yes, sir. I put up machinery there. Q. What shooting occurred there? A. I don’t know. Q. Never did? A. No, sir. Q. Somewhere in Atlanta when you were there ? A. No, sir. Q. You remiemh ber old- -man Joe Wilkie, father of -the girl yo-u married? A. Yes, sir. Q. You shot him, didn’t you? A. Yes, sir. Q. You remember George Cade? A. Yes, -sir. Q. You ever work -at Bath-, Aiken County ? A. Yes, sir. Q. You cut a fellow down there, didn’t you? A. Yes, sir. Q-. You got in trouble in- Birmingham with a circus man and got *197arrested? A. 'No, sir. •Didn’t get arrested; just carried! mle outside of the tent; said I -would have to go -out if I -disturbed anything in there. Q. Did you disturb anything, in there? A. I don’t know.”

The defendant, when sworn in his own behalf, may be asked on cross-examination about any of bis past transactions tending to affect his credibility, but noit about such as affect his character in other respects. *State*v. *Robertson,*26 S. C., 120, 1 S. E.,*443; State*v. *Mitchell,*56 S. C., 533, 35 S. E., 210. When thdsi objection, was made there was nothing to show that the transaction inquired about w-as not one tending to affect the credibility of the witness.- The Circuit Judge was not in error therefore at the time in admitting -the question. Had the objection been made or renewed when it subsequently appeared the transaction did not tend to affect the credibility of the witness, it Would have been error to allow': the examination to- -continue. *State*v. *Wyse,*33 S. C., 582, 12 S. E., 556; *State*v. *Taylor,*56 S. C., 360, 34 S. E., 934; *State*v. *Kenny,*77 S. C. 236; *State*v. *Robertson, supra; State*v. *Mitchell, supra.*But the objection was not made at that time, -and -must, therefore, be considered waived.

6 The seventh- exception is as follows: “That he erred in charging the jury the State’s sixth request, as A man is not justified under the law in taking the life of another merely upon suspicion, or even upon being tolld that his iwife has had illicit relations with the deceased, and if he does so and has mal-ice -in his. heart at the time, and he is at fault in bringing about the difficulty, or there was no read or apparent necessity to- kill, or there wia-s a reasonable way to escape from the necessity to kill without taking life, then that would be murder, under the law, and if you find those to be the facts in this case, yo-ur duty will be to convict the -defendant of murder;’ ¡the error being that it wias a ^charge upon the facts in violation of the -Constitution -of the State, as his Honor thereby instructed -the jury to convict defendant if it -found -certain fact against himl, -which facts *198Were the very facts upon which nearly the entine testimony in this case was given and upon which' the State asked for conviction, to wit, that defendant killed deceased because of his having been ‘told that his wife had had illicit relations- with the deceased,’ and- thereby, in so m|any words, directed a verdict of murder against the defendant.”

This exception can not be sustained, for the reason that only one inference -could be drawn from the facts- hypothetically -stated. It was a mere statement of the elements constituting murder.

7 The eighth exception is -as follows: -“That his Honor erred in using -this language, -calculated to intimidate and coerce the juiy, ‘You dare not go- beyond that jury box in considering -the testimony offered-;’ the error -being that as matter of law the jury are supreme in their jury box and there is none of who-mi they -are to be afraid, and such- language Was an intimation and a threat, with nothing substantial or legal -to stand upon, or back it up', buf which-, nevertheless, had its effect, doubtless, upon the jury, to the prejudice of defendant.”

Wie see no error in calling the attention of the jury to what was their plain -dutty.

It is the judgment of this Court, that the judgment of the Circuit -Court be affirmed.