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THE STATE v. SMITH

October 26, 1956

THE STATE, RESPONDENT,
v.
DEWITT T. SMITH, APPELLANT.



The opinion of the court was delivered by: Moss, Justice.

October 26, 1956.

The appellant, DeWitt T. Smith, was arrested and charged in the Recorder's Court of the City of Charleston with operating a motor vehicle while under the influence of intoxicating liquors, in violation of City Ordinance No. 46-58. On trial before the Recorder, with a jury, the appellant was convicted and sentenced. He appealed from such conviction and sentence to the General Sessions Court of Charleston County. The Honorable E.H. Henderson, Presiding Judge of the Ninth Judicial Circuit, dismissed the appeal from such court and affirmed the conviction of the appellant.

The appellant also complains that it was error for the attorney for the respondent to comment to the jury upon his refusal to submit to the chemical test of his blood. The exceptions of the appellant pose the questions hereinbefore stated.

There can be no doubt that a defendant has a constitutional right to be confronted by the witnesses against him. Art. I, Section 18, of the 1895 Constitution of South Carolina provides:

"In all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him; * * *."

This constitutional right is restated in Section 17-506 of the 1952 Code of Laws of South Carolina, which provides:

"Every person accused shall, at his trial, * * * have a right * * * to meet the witnesses produced against him face to face."

The defendant cannot be denied the right to cross-examine the witnesses against him. State v. McNinch, 12 S.C. 89. The personal presence of a witness is required so that the accused may cross-examine him. State v. Bigham, 133 S.C. 491, 131 S.E. 603. Affidavits and depositions are inadmissible in evidence in a criminal case. State v. Hester, 137 S.C. 145, 134 S.E. 885; State v. Murphy, 48 S.C. 1, 25 S.E. 43.

We adhere to the announcements made in the foregoing cases.

However, the transcript of record in this case does not show what evidence was offered by the hearsay statements of the proprietors of the restaurants referred to in such statements. An accused must be prejudiced by the admission of hearsay testimony in order to be entitled to a reversal on the ground of its admission. The record in this case does not show what the testimony was nor can we determine from the record whether it was prejudicial to the appellant or not. The burden is upon the appellant to satisfy this court that there has been prejudicial error. State v. McPhail, 115 S.C. 333, 105 S.E. 638; State v. Glover, 91 S.C. 562, 75 S.E. 218; State v. Bethune, 88 S.C. 401, 71 S.E. 29.

In the case of State v. Deas, 202 S.C. 9, 23 S.E.2d 820, 821, this court said:

"As has been many times said, the admission of evidence is largely within the discretion of the trial judge and erroneous exercise of it must be accompanied by probable prejudice to a party in order to entitle him to a new trial for admission or rejection of ...


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