Volume 119 — South Carolina Reports

<p>Insurance — Insurer Paying Insurance to Mortgagor With Knowl- . edge of Mortgage, Though Not of its' Provisions for Insurance for Mortgagee, Liable to Mortgagee. — Where mortgagor of auto took out fire policy thereon, payable to himself, reciting it was mortgaged to a certain company for a certain amount, and such mortgage was recorded, and contained agreement of mortgagor to insure and assign policy to mortgagee, the insurer, paying the policy to the mortgagor, after inquiring of the mortgagor as to the status of the mortgage, and being put on inquiry as to provision of mortgage as to insurance, though having no actual knowledge thereof, is liable to the mortgagee for the policy’s proceeds.</p> <p>Note: On right of mortgagee to benefit of insurance taken in name of mortgagor, see note in 25 L. R. A. 305.</p>

Before Bowman, J., Hampton, October,-1919. Action by Catherine E. Patterson against E. M. Causey et al. From directed verdict for defendants the plaintiff appeals. The third exception was as follows: “Because his Honor, the presiding Judge, erred in holding and deciding that Thos.

Before SeasE, J., Union, May, 1921. Action by Southern Bridge Co. against J. V. Askew, Supervisor, et al, Commissioners. From directed verdict for plaintiff the defendants appeal. cite: Where more than one ' inference can be drawn from contract, question is for the jury: 93 S. C. 541; 89 S. C. 73; 5 Wall 689; 67 S. C. 34; 10 U. S. 263; 2 Page Conts., Sec. 1129; 112 S. C. 440. Commission authorised: 30 Stats. 648. cite: Mere proposal may be countermanded: 115 S. C. 482.

Before Moore, J., Richland, October, 1917. Edward Johnson indicted and convicted of receiving stolen goods and appeals. The following are the exceptions by defendant: (1) It is submitted that Section 204, Crim.

<p>Before Gary,, J. Edgefield, March 1921.</p> <p>John L. George, convicted of manslaughter, appeals.</p> <p>cite: Requirements of the law as to retreat by party being attacked: 65 E. Ed. (U. S.) 619; 158 U. S. 550, 39 E. Ed. 1086; 164 U. S. 546, 41 E. Ed. 547; 96 S. W. 1068; 17 S. W. 1106; 209 U. S. 36, 52 E. Ed. 670.</p>

Before TowsEnd, Spartanburg, 1921. Action by Southern Railway Co- against South Carolina Light, Power and Railways Co. Erom directed verdict for plaintiff the defendent appeals. cite: Street Railway has right of eminent domain across track of steam railroad: Lewis Em. Dom. Sec. 180; 36 S. E. 873. No consideration for contract: Elliott Conts., Sec. 234, 215. Construction by parties will be adopted: Elliott Gouts., Secs. 1537, 1542; 34 Eed. 254.

<p>Before MemmingEr, J., Florence, Spring term, 1921.</p> <p>Edmund D. Bigham indicted for the murder of L. Smiley Bigham and upon conviction appeals.</p> <p>The exceptions of defendant were as follows:</p> <p>(1) That the presiding Judge erred in overruling appellant’s motion for a change of venue, in that the affidavits submitted by the accused in support of said motion plainly and manifestly showed that the accused could not at the time he was called to trial secure a fair and impartial trial of his cause in the said County of Florence.</p> <p>(2) That the presiding Judge erred in overruling appellant’s motion for a change of venue, in that the affidavits submitted by the State were not sufficient in legal form, statement, or effect — the said affidavits not stating facts or grounds upon which the alleged beliefs and opinions of affiants were founded — to sustain the conclusion of the presiding Judge that the defendant could obtain a fair and impartial trial in Florence County, and in so holding he was plainly and manifestly in error.</p> <p>(3) That the presiding Judge erred in overruling the appellant’s motion for a change of venue, in that upon the whole showing made, upon said motion, he did deprive the defendant, as a citizen of this State and of the United States, of his right to a fair and impartial trial, as guaranteed to him under Article 1, § 18, and Article 6, § 2, of the Constitution of South Carolina, and Section 3832 of the Civil Code of South Carolina.</p> <p>(4) That the presiding Judge erred in overruling the appellant’s motion for a change of venue, in that, by his refusal to grant such motion and order the place of trial changed to some other county within the same judicial circuit, he did fail to exercise a sound judicial discretion, and was plainly and manifestly in error.</p> <p>(5) That the presiding Judge erred and did fail to exercise a sound judicial discretion in overruling defendant’s motions for a continuance, in that he thereby deprived appellant of a reasonable time within which to prepare his defense.</p> <p>(6) That the presiding Judge erred and did fail to exercise a sound judicial discretion in overruling defendant’s motions for a continuance, in that he thereby deprived him of his right to be fully heard in his defense, in contravention of the provisions of Article 1, § 18, of the Constitution of South Carolina.</p> <p>(7) That the presiding Judge erred and did fail to exercise a sound judicial discretion in overruling defendant’s motions for a continuance, in that he was thereby deprived of the privilege of using the testimony taken at the Coroner’s inquest to contradict the witnesses for the State, Dr. W. H. Poston and others.</p> <p>(8) That the presiding Judge erred in admitting, over the objection of appellant’s counsel, the testimony of the witness, Mrs. Kirton, as to an alleged conversation between herself and the deceased, Smiley Bigham, the appellant not being present; such testimony being as follows:</p> <p>“Q. You saw him Tuesday before the homicide? A. Yes, sir.</p> <p>“Q. Were his actions normal that day; did he have a conversation with you? A. ' Yes, sir.</p> <p>“Q. What was the conversation? (Objected to by defendant. Objection overruled. Exception noted.) A. He said: ‘He is kind of cutting up some with us; he has had his share, but I am going to give him a piece of land if he will behave himself. He is talking about killing us all, but I am not afraid.’ ”</p> <p>Said testimony being hearsay and highly prejudicial to the rights of accused.</p> <p>(9) That the presiding Judge erred in refusing to charge appellant’s first request to charge, to wit: “That the defendant was, as matter of law, at the beginning of this case, as innocent of the crime charged against him as any member of the jury, and that he continues so to be until this moment, unless the jury believe that the unimpeached evidence presented from the stand establishes his guilt beyond all reasonable doubt.” It being respectfully submitted that the said request embodied a correct principle of law which was applicable to the case.</p> <p>(10) That the presiding Judge erred in refusing to declare the law, as required of him by Article 5, § 26, of the Constitution of South Carolina, in that he failed to charge the jury that the accused then on trial was presumed to be innocent, which presumption remained with him at every stage of the trial, and entitled him to an acquittal, until removed by evidence adduced at the trial sufficient to convince the jury beyond a reasonable doubt of his guilt, which is a correct principle of law and was directly applicable to the case.</p> <p>(11) That the presiding Judge erred in refusing to declare the law as required of him by Article 5, § 26, of the Constitution of the State, in that he failed to charge the law relating to the defense of an alibi, the issues involved therein fairly arising upon the record in the case and the law relating thereto being applicable to the case.</p> <p>(12) That the presiding Judge erred in charging the jury as follows, to wit: “Now that malice, either express or implied, must be aforethought to1 come up to the requirements of the law. It does not mean that that aforethought must necessarily have existed for a great length of time. That is not necessary to make malice aforethought. It may be conceived in the man’s mind, or it may be implied by the character of the conduct described to you in a moment of time. So that if a killing is shown to have been done, if, as in this case, the defendant is shown, beyond a reasonable doubt, to have killed Smiley Bigham with malice afterthought, express or implied, he is guilty of murder; otherwise not.” In that by the use of the words, “if, as in this case,” he virtually instructed the jury- to find the defendant guilty of murder.</p> <p>(13) That the presiding Judge erred in charging the jury as follows, to wit: “Now, that malice, either express or implied, must be aforethought to come up to the requirements of the law. It does not mean that the aforethought must necessarily have existed for a great length of time. That is not necessary to make malice aforethought/ It may be conceived in the man’s mind, or it may be implied by the character of conduct described to you in a moment of time. So that if a killing is shown to have, been done, if, as in this case, the defendant is shown, beyond a reasonable doubt, to have killed Smiley Bigham with malice aforethought, express or implied, he is guilty of murder; otherwise not” — in referring to and charging upon the disputed facts in the case, namely, that the appellant killed the deceased with malice aforethought, or that he killed him at all. ■ .</p> <p>(14) That the presiding Judge erred in charging'the jury as follows: “Now, the defendant claims in this case not only that he is not guilty of the offense, but that the death of Smiley Bigham was the result of an act of his own; that he committed suicide. Now, is there a reasonable doubt upon that point? If you find that there is a reasonable doubt that Smiley Bigham killed himself — took his own life — then you cannot convict the defendant in this case, because it must be shown beyond a reasonable doubt that Smiley Bigham did not commit suicide and that this defendant did kill him, before you can bring in a verdict against him.” In that he thereby, in effect, told .the jury that it was incumbent upon the defendant to explain the death of Smiley Bigham, beyond a reasonable doubt; otherwise, he must be convicted.</p> <p>(15) That the presiding Judge erred in charging the jury: “Now, the defendant claims in this case, not only that he is not guilty of the offense, but that the death of Smiley Bigham was the result of an act of his own; that' he committed suicide. Now, is there a reasonable doubt upon that point? If you find that there is a reasonable doubt that Smiley Bigham killed himself — took his own life — then you cannot convict the defendant in this case, because it must be shown beyond a reasonable doubt that Smiley Bigham did not commit suicide and that this defendant did kill him, before you can bring in a verdict against him.” In that, by using the language, to wit, “Now, the defendant claims in this case, not only that he is not guilty of the offense, but that the death of Smiley Bigham was the result of an act of his own; that he com* mitted suicide,” he deprived the appellant of the right to rest his case wholly upon his plea of not guilty, and imposed upon him the burden of otherwise accounting for the death of the deceased.</p> <p>(16) That the presiding Judge erred in charging the jury: “Now, the defendant claims in this case, not only that he is not guilty of the offense, but that the death of Smiley Bigham was the result of an act of his own; that he committed suicide. Now, is there a reasonable doubt upon that point? If you find that there is a reasonable doubt that Smiley Bigham killed himself — took his own life — then you cannot convict the defendant in this case, because it must be shown beyond a reasonable. doubt that Smiley Bigham did not commit suicide and that this defendant did kill him before you can bring in a verdict against him.” In that he virtually instructed the jury unless the appellant did show that Smiley Bigham did commit suicide beyond a reasonable doubt, they might conclude that the appellant killed him.</p> <p>(17) That the presiding Judge erred in stating to counsel for accused: “If Mr. King cannot conduct his argument in a more orderly manner, the Court will require him to forthwith take his seat, and other counsel will be appointed to conduct the case for defendant.” In that the language of counsel to which the presiding -Judge referred was a fair, proper, and legitimate discussion of the evidence adduced in said cause, and such remark from the Court directed to counsel in the presence of the jury was highly prejudicial to the rights of appellant.</p> <p>(18) That the presiding Judge erred in stating to counsel for appellant as in Exception 17: “If Mr. King cannot conduct his argument in a more orderly manner, the Court will require him to forthwith take his seat, and other counsel will be appointed to conduct the case for defendant.” In that such statement by the presiding Judge in effect denied to appellant the right to be fully heard in the presentation of his case to the jury, in contravention' of Article 1, § 18, of the Constitution of South Carolina; the language of counsel to which the statement of the presiding Judge was directed being a fair, proper, and legitimate discussion of the evidence adduced in said cause.</p> <p>(19) That the verdict of guilty found against appellant was not supported by any legal, relevant, and competent evidence in said case.</p> <p>(20) That the presiding Judge erred and failed to exercise a sound judicial discretion in overruling the motion of appellant for a new trial, in that the verdict of guilty found against tire appellant was not supported by any legal, relevant, and competent evidence in said case.</p> <p>(21) That the presiding Judge erred and failed to exercise a sound judicial discretion in overruling the motion of appellant for a new trial, in that the verdict was not supported by any evidence in the case.</p> <p>(22) That the presiding Judge erred and failed to exercise a sound judicial discretion in overruling the motion of appellant for a new trial, in that he was denied the right-to a fair and impartial trial as guaranteed to him by the Constitution of South Carolina, both in failing to grant his motion for change of venue and for continuance.</p> <p>(23) That the presiding Judge erred and failed to exercise a sound judicial discretion in overruling the motion of appellant for a new trial, in that the verdict of “guilty’’ dence and law of the case.</p> <p>(24) That the presiding Judge erred and failed to exercise sound judicial discretion in overruling the motion of appellant for a new trial, in that the verdict of “guilty” and sentence pronounced thereon are not supported by any legal, competent evidence in the case.</p> <p>(25) That the presiding Judge erred and failed to exercise a sound judicial discretion in overruling the motion of appellant• for a new trial, in that the verdict and sentence thereon are not supported by any evidence whatsoever.</p> <p>cites: Refusal of change of venue denied defendant a fair trial: 86 S. C., 422; 110 S. C., 273; 5 Ky. L.’ Rep., 877; 84 Ala., 410; 16 C. J., 216; Id., 353; 91 S. C., 29';' 1 Bish. Crim. Proc., Sec. 1092; 56 N. W., 257. Continuance on ground of inadequate time for counsel to prepare case: 23 So., 503; 127 Pac., 746. Testimony before Coroner had not been signed by witnesses: Crim. Code 1912, Sec. 1010; 1 Civ. Code 1912, Sec. 1288. Presumption of innocence to end of trial: 1 Bish. Crim. Proc., Sec. 1105; 16 C. J., 535; 79 S. E., 87; 156 U. S„ 432. Charge on facts: 85 S. C., 270; 98 S. C., 300; 82 S. C., 486. Remarks to defendant's counsel prejudicial: 99 Miss., 47.</p> <p>cites: Change of vemie discretionary: 110 S. C., 273. As is continuance: 79 S. C., 84;.77 S. C., 236. If covered by general charge it is not error to refuse a specific request: 84 S. C., 568; 84 S. C„ 416; 95 S. C., 239. Alibi: 100 S. C., 435. Counsel must call Court's attention to obvious omission: 81 S. C., 1. Charge on malice: 86 S. C., 106. Charge must be taken as a whole: 98 S. C., 262; 99 S. C., 432; 98 S. C., 338. Charge on facts-. 86 S. C., 81. Argument controlled by trial Judge. 26 S. C., 118.</p>

Before Townsend, J., Daurens, April, 1921. Action by D. Y. Weathers against Sovereign Camp, Woodmen of the World. -From directed verdict for defendant' plaintiff appeals. The grounds of defendant’s motion for a directed verdict were as follows: First.

Before WharEy, J., County Court, Richland, December, 1920. Two actions by Alma G. Bouknight and J. T. Bouknight against L. T. Lester. Judgment for both plaintiffs and defendant appeals. The eighth exception was as follows: 8.