Sumter Trust Co. v. Holman , 134 S.C. 412 ( 1926 )


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  • I concur fully with Mr. Justice Blease in his disposition of this appeal, except in reference to the remarks of the Circuit Judge relating to the testimony of the witness Clarke; as to them I do not think that the error warrants a reversal of the judgment. *Page 432

    It is a proverb as old as the law that it is to the interest of the State that there be an end of litigation; particularly is this true of a family dispute where feeling runs high; and in such cases, filed with an immense detail of evidence and acrimonious controversy, the verdict after a fair trial should not be disturbed except where prejudicial error is shown.

    Evidently, from the size of the printed record, 218 pages, and from the number of witnesses examined, 35, the trial must have consummed several days, and I think that it is a remarkable tribute to the ability of the Circuit Judge that the only assignment of error sustained is in the unimportant incident referred to. If a case is to be remanded for a new trial, a renewal of a bitter conflict, upon an incident which appears to me so trivial, there is little hope that the end of the litigation may be reached during the present generation.

    The incident referred to was as follows: T.H. Clarke was a witness offered by the proponents of the will. His direct testimony was confined exclusively to the conduct of Mrs. Holman. Upon cross-examination he testified that the testator was peculiar at times; that peculiarity gradually increased; that he was addicted to the use of drugs; that he was sent to a sanitarium; that he was hard to get along with, and other testimony tending to sustain the contention of the contestant. He also testified that at the time the will was made the testator was sane. After testifying that Mrs. Holman was violently prejudiced against the memory of the first Mrs. Holman, the Circuit Judge turned to him, and this colloquy ensued:

    "The Court: How do you account for the second wife's flying into a rage when the first wife was mentioned.

    "The witness: I cannot account for it.

    "The Court: How do you expect the jury to believe that this second wife would go into a rage when his first wife was mentioned? *Page 433

    "The witness: I do not know, your Honor, but such is the case.

    "The Court: How do you expect me to believe it? That evidence is before me as well as the jury, you know."

    The following day, this occurred:

    "The Court (to the jury): Gentlemen, the Court would like to state to you that some just complaint may be made against the Court's remarks yesterday to the witness Clarke, who was on the stand. Of course, the conversation between the Court and the witness was not intended for the jury, but was merely a colloquy between the Court and the witness; but I will charge you in this case, gentlemen, that the Judge is not to comment on the facts in any way, shape or form, and any comments on the facts made by the Judge are not to be considered by them, as the Judge is not allowed to comment on the facts. So if anything has entered your minds by reason of the conversation of the Judge with the witness, you will have to disabuse your minds of that, entirely. It is a hard thing, in a case of this kind, for the Judge not to say something. As to the witnesses, he does not know whether they are telling the truth or not. I understand that the witness Clarke is one of the best citizens of the town, but the Judge did not know that; simply takes them as they are put on the stand; has no knowledge of the witnesses personally at all; so take that from your minds; what the Judge said in commenting to the witness, you will get that completely from your mind."

    Of course, the interjection of the Circuit Judge, in the first instance, was unwarranted; but it was an error in favor of the contestant, and she has no right to complain of it; besides, it was upon an immaterial issue in the case, the domestic relations between the husband and the wife in no manner affecting the real issue of the testamentary capacity of the testator.

    I do not suppose that it will be contended that the error, harmless as it may have been, could not have been corrected *Page 434 by the Judge; and my opinion is that is all the Circuit Judge intended to do. It is well-recognized law everywhere that an error upon the trial, if seasonably and adequately corrected by the presiding Judge, cannot be assigned as reversible error. See Templeton v. R. Co., 108 S.E., 363;117 S.C. 44, where it was held that the correction was not seasonably and adequately made and was therefore reversible error.

    From the language used by the Judge, quoted above, his manly admission of error was as seasonably and adequately made as it was possible for him to have done. The gist of the appellant's objection, however, is that in making the correction he fell into a greater error by passing upon the credibility of the witness in saying, "I understand that the witness is one of the best citizens of the town," and that his imprimatur upon the reputation and character of the witness was sufficient to induce the jury to believe that what he had testified to was true. In the first place, I do not think that the Circuit Judge had any other idea than to wipe away the stain which he had placed upon the witness, without the slightest intention to underwrite the statement which he had made, for evidently he did not believe it. In the second place, it referred to evidence that was entirely immaterial upon the issue of the case, the testamentary character of the testator. In the third place, it was conceded on all sides that Mr. Clarke was all that the Circuit Judge said he was; in fact, he was that by presumption of law, as no attack had been made upon his credibility by any one except the Judge and he had obliterated the reflection which he had caused. Counsel for the appellant state in their printed argument that Mr. Clarke was "a gentleman of high standing and intimately known to the members of the jury." I cannot conceive that the appellant was prejudiced by the statement of the Judge of a fact which her counsel solemnly admits. *Page 435

    Counsel for the appellant assume inconsistent positions: They contend that as Mr. Clarke was a man of high standing, known as such by the jury, the unwarranted attack upon him in the first instance was calculated to arouse resentment in the minds of the jury and a determination on their part to vindicate him by accepting his statement; and in the next breath they contend that the Judge invaded the province of the jury by telling them that Mr. Clarke was a man of high standing, a fact conceded by them.

    In Herndon v. R. Co., 111 S.E., 13; 118 S.C. 466, it is substantially held that it is not error to comment on evidence that is all one way. Certainly, then, it cannot be error where the fact commented upon is conceded by the other side.

    The first exception cannot be sustained for the double reason that it was in the interest of the contestant and the error was adequately corrected by the Judge. The second exception cannot be sustained for the reason that the fact commented upon was one admitted by the contestant.

Document Info

Docket Number: 11960

Citation Numbers: 132 S.E. 811, 134 S.C. 412

Judges: MR. JUSTICE BLEASE.<page_number>Page 420</page_number>

Filed Date: 4/15/1926

Precedential Status: Precedential

Modified Date: 1/13/2023