State v. Bolin , 177 S.C. 57 ( 1935 )

The leading opinion by Mr. Justice Bonham is such a clear and conspicuous exposition of the law relating to the issues in this case as to make it impossible by further comment to add thereto. It is the opinion of the Court that a new trial must be granted for the cogent reasons stated as to Exception five, subdivisions (e) and (f) and Exception six, all of which relate to the cross examination of the defendant, E.B. Bolin; and this also applies to Exception eight; all of these exceptions are unanimously sustained.

I feel that a distinction can be made in regard to the other exceptions, which are directed to the remarks of the solicitor and to the cross examination by him of the other witnesses. These questions are raised by Exceptions five (a), (b) and (c) as to the cross examination by the solicitor of the witnesses Littlejohn, Joe M. Smith, and Olin Vinesette, and by Exception nine as to the examination of Anson Coy as a witness. The issues raised by these exceptions refer to matters which in some cases might be held to be harmless and not prejudicial. But when these matters are considered in connection with the cross examination of the defendant as a witness, the innuendo renders it more harmful. The trial of a hard fought cause calls forth many statements and remarks of counsel in the heat of the controversy which may not be sufficient to justify a new trial; this is especially true when such remarks are induced by the impetuosity of opposing counsel. Often some allowance may be made for conditions due to the zeal of earnest lawyers, especially when the admission of such testimony is largely within the discretion of the presiding Judge. Statev. Petit, 144 S.C. 452, 142 S.E., 725. I think that these exceptions last mentioned, standing alone, would not of themselves show reversible error, and that it is permissible to call attention now to this point of view, as it will be necessary for a new trial to be granted, and for the same ground to be gone over again before another jury, where the Circuit Judge will meet many of these same difficulties, unless counsel on both sides exercise more restraint on their part.

MR. CHIEF JUSTICE STABLER and MR. JUSTICE CARTER concur.