# State v. Merriman

> Court of Appeals of South Carolina · November 8, 1985 · 287 S.C. 74

URL: https://www.frixlaw.com/law-library/cases/9586344

## Case

- **Full name:** The STATE, Respondent, v. Edward F. MERRIMAN, Appellant; The STATE, Respondent, v. Paul MAZZELL, Appellant
- **Court:** Court of Appeals of South Carolina
- **Decided:** November 8, 1985
- **Citations:** 287 S.C. 74; 337 S.E.2d 218; 1985 S.C. App. LEXIS 504
- **Precedential status:** Published
- **Opinion:** Concurrence by Gardner
- **Judges:** Sanders, Bell, Gardner
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9586344

## How later opinions describe it (automated extraction)

- explaining the abolition of the prohibition against testimony by a convicted perjurer

## Opinion text

Gardner, Judge
(concurring in result):
I concur in the result because Hines’ testimony was merely cumulative; there was testimony of record by witness Hogg which is the same as that given by Hines.
I, however, cannot agree with the reasoning of my brethren by which they adhere to the published decision — *95 this in spite of the fact that I authored the original opinion. Upon reconsideration I have changed my opinion and now believe that Section 16-9-10 is a viable statute.
In 1914, an en banc hearing of the Supreme Court and circuit judges of this state was held in the case of Nexsen v. Ward, 96 S. C. 313, 80 S. E. 599 (1914). An en banc hearing in Nexsen was called to determine the effect of Section 5 of article 6 of the Constitution of 1895, which provides for a codification of all the general statutes of the state every ten years and that the codes adopted under that provision shall be the only statutory law of the state. The court in Nexsen held that any matter not theretofore a part of the general statutory law of the state, became by virtue of its inclusion in the civil code of 1902, a part of the general statutory law of the state. The court said, “that any matter which the legislature may constitutionally enact as law becomes such when it has been inserted in the Code and adopted with it. ” 96 S. C. at 319, 80 S. E. at 601 . (Emphasis mine.)
It is true, as the majority of this decision notes, that Act No. 632 of 1934 (currently codified as Section 19-11-60 of the 1976 Code) contains an express repealer and therefore repealed Section 16-9-10 from the enactment of Act No. 632 of 1934 until the adoption of the 1942 Code; nevertheless, under Nexsen , upon the adoption of 1942, Code 1 of Laws of South Carolina, Section 16-9-10 was reenacted and now, in the opinion of the writer, is a viable statute.
As noted, however, I concur with my brethren of the majority because Hines’ testimony was merely cumulative.
This statute was recodified in 1952, in 1963 (in which code it is cross-indexed with Section 19-11-60) and in 1976. It has thus been reenacted by legislative adoption of four South Carolina Codes.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9586344. Public record. Not legal advice.