# State v. Bigham

> Supreme Court of South Carolina · February 1, 1926 · 133 S.C. 491

URL: https://www.frixlaw.com/law-library/cases/3883460

## Case

- **Full name:** State v. Bigham.
- **Court:** Supreme Court of South Carolina
- **Decided:** February 1, 1926
- **Citations:** 133 S.C. 491; 131 S.E. 603; 1926 S.C. LEXIS 114
- **Precedential status:** Published
- **Opinion:** Concurrence by Marion
- **Judges:** Watts, Chiee, Gary, Cothran, Purdy, Marion, Messrs
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Mr. Justice Marion
(concurring specially) : The task of reaching a conclusion, satisfactory to myself in this case, has given me great difficulty. After a painstaking examination of the record and careful consideration of the question raised by the appeal, I am constrained to concur in the result of the opinion of Mr. Justice Watts.
•Unquestionably, for reasons of public policy — as obvious as they are weighty- — which may not properly be ignored by the Courts in the administration of justice, this judgment ought to be affirmed, if that result could be reached consistently with a sound and fair determination of the ques
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tions of law raised by the appeal. In the determination of those questions it is to be borne in mind that in a case of this kind the Supreme Court by constitutional limitation is a Court for the “correction of errors of law” only; and, under the settled principles of our jurisprudence, where an appellant can show that prejudicial error of law has been committed in the course of his trial in the Court below, he is of right entitled at the hands of this Court to a reversal of the judgment appealed from and to a new trial of his cause.
I am unable to resist the conclusion that the admission of the' testimony of Mrs. Ola Kirton as to the declaration of the deceased, Smiley Bigham, made to her, in the absence of the defendant, on the Tuesday before the homicide on the following Saturday, must be held for prejudicial error of law, and upon the ground that the appellant’s exceptions directed to that contention should be sustained. I concur in the result of the opinion of Mr. Justice Watts. Unless the admission of this declaration of the deceased can be sustained under some established exception to the hearsay rule of evidence — a rule sanctioned and applied in all jurisdictions wherein the principles of the English common law are recognized and enforced — the admission of Mrs. Kirton’s testimony was clearly erroneous. After a careful study of the question involved, I am not satisfied that the admission of this testimony can soundly be justified under any recognized exception to the hearsay rule. Since an adequate statement of the reasons for that view would involve a somewhat extended technical discussion, directed to the demonstration of a proposition whose validity is already conceded by a majority of this Court, and would detail further delay in the disposition of the appeal, I shall undertake no extended discussion of the point involved. It is sufficient to say that under no estáblished exception to the hearsay rule, which could possibly be invoked here, does the law permit the extrajudicial statement of a person, when admitted in evidence, to be used testimonially; that is, as
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evidence establishing or tending to establish the truth of the fact or facts asserted by the declarant. Thus the admissibility of such a statement under the exception to the hearsay rule applied by the learned Circuit Judge in this case, viz., that, where the condition of mind of the declarant is an issuable fact his declarations may be admitted to show what that condition of mind was, obviously depends upon whether the fact that the particular declaration was made has any logical tendency to establish what the condition of the declarant’s mind was in so far as such state of mind was involved as an issuable fact in the case. This declaration of the deceased, Smiley Bigham, to Mrs. Kirton was admitted by the trial Court solely upon the ground that it had some probative force to rebut the defendant’s contention of fact that Smiley was insane. But the mere fact that Smiley said, several days before the homicide, that the defendant, Edmund, had been threatening to kill the whole Bigham family, could have no probative force to establish his sanity, unless what he said was true. If what he said was true, his statement was rational and to the same extent as any other rational remark made to Mrs. Kirton might be said to have some slight relevancy upon the issue of his sanity; if what he said was untrue, the making of such a declaration could have no logical tendency whatever, so far as I can perceive, to rebut the contention that he was insane. The declaration, therefore, could have no possible relevancy for the purpose it was admitted without first assuming that the statement of fact embodied therein was true, and such assumption obviously would directly involve the
testimonial
use of the declaration forbidden by the hearsay rule and completely shatter the theory of the exception invoked to sustain its admission, viz-., that the fact that the declaration was made was, in itself, a relevant circumstance regardless of its truth or falsity.
In this connection I deem it proper to say that I have not overlooked the cogent reasons that exist for the creation of
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a general exception to the hearsay rule, which would make testimony of this character — that is, “the statement of a deceased person who had competent knowledge and no apparent interest to- deceive”- — admissible in evidence for testimonial use; and I am inclined to agree with Professor Wigmore that “such an exception to the hearsay rule commends itself as a just addition to- the present sharply defined exceptions, and foreshadows undoubtedly the enlightened policy of the future.” Section 1576, Wigmore on Evidence (1st Ed.). But no such exception now exists and for this Court to create such an exception for the purposes of this appeal would be in the nature of an
ex post facto
ruling — a ruling which, in this case, certainly, I do not think may be justly enunciated and applied.
If the admission of this testimony was erroneous as a matter of law, the only escape from the" conclusion that the appellant is entitled to a reversal lies in holding that the error was not prejudicial. As above indicated, the alleged declaration of the deceased, Smiley Bigham, to which Mrs. Kirton testified, was to the effect that the defendant, Edmund Bigham, had been making threats to kill the whole family. The vital relevancy of the fact — if it was a fact— that the defendant had made the threats said to have been attributed to him by the deceased, is apparent. The State’s theory of the case was that the defendant had done exactly what the deceased was said to have declared the accused had threatened to do. Since, as I have indicated, the admission of this declaration inevitably involved its use testimonially (that is, as evidence establishing, or tending to establish, the truth of the declarant’s assertion that such threats had actually been made), the prejudicial effect of this testimony would seem to be too clearly apparent to require argumentative discussion. It touched directly the very nerve of the case. In that view, I know of no principle of our criminal jurisprudence which would justify this Court in pronounc
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ing the error harmless and in affirming the judgment on that ground.
The other exceptions sustained in the leading opinion, in my judgment, are of doubtful merit. The defendant’s objections to certain questions propounded by State’s counsel upon the cross-examination of the defendant, which objections constitute the basis of these objections, were all sustained by the trial Court. I am. not prepared to say that in ihe handling of the somewhat difficult situation brought about by the persistence of State’s counsel in the line of cross-examination, to which these objections had been made and sustained, the Circuit Judge was guilty of such an abuse of discretion in the conduct of the trial — a matter as to which the law gives the trial Judge very broad discretionary powers — as would warrant a reversal of the judgment upon that ground alone. The consideration, however, that, despite the trial Court’s correct rulings as to the impropriety of the questions propounded, the legitimate bounds of cross-examination were in fact transcended by State’s counsel, lends appreciable force, in the practical aspect, to the appellant’s right to a reversal upon the other ground hereinabove discussed.
As to the disposition of the remaining exceptions treated in the separate opinion of Mr. Acting Associate Justice Purdy, I concur fully in his opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3883460. Public record. Not legal advice.