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  • Messrs. W.G. Finley and R.B. Hildebrand, of York, for Appellant, cite: As to power of Supreme Court to correct an excessive sentence: 212 S.C. 154, 46 S.E.2d 693; 157 S.C. 364, 135 S.E. 360; 159 S.C. 165, 156 S.E. 353; 209 S.C. 108, 39 S.E.2d 197; (S.C.) 46 S.E.2d 273. As to the sentence imposed being violative of the statutory limitation of ten years: 212 S.C. 154, 46 S.E.2d 693; 107 S.C. 481, 93 S.E. 136, 5 C.J. 807; 127 S.C. 116, 120 S.E. 490-491. As to error on part of trial judge in refusing defendant's counsel the right of asking hypothetical question of testifying family physician: 20 Am. Jur. 668, Sec. 796; 216 S.C. 401, 58 S.E.2d 675. As to error on part of trial judge in admitting photographs of scene of alleged crime, when the only purpose of such photographs was to prejudice minds of the jury: 201 S.C. 230; 194 S.C. 410, 10 S.E.2d 587, 588; 198 S.C. 215, 17 S.E.2d 142; 20 Am. Jur., Evidence, Par. 729. As to a person, though not an expert, who has had opportunity of observing a person being competent to express an opinion as the person's sanity or insanity: 59 S.E. 816, 129 Ga. 717; 63 S.E. 84, 149 N.C. 519; 138 S.E. 318, 103 W. Va. 653; 82 S.C. 395; 20 Am. Jur., Evidence, 852; 72 A.L.R. 579. As to the cross examination conducted by the solicitor, and the argument made by him, being improper and prejudicial and precluding defendant from receiving a fair and impartial trial: 216 S.C. 44, 56 S.E.2d 736; 207 S.C. 126, 35 S.E.2d 38; 143 S.C. 318, 141 S.E. 559; 158 S.C. 251, 155 S.E. 409-421; 210 S.C. 481, 43 S.E.2d 360; 205 S.C. 412, 32 S.E.2d 163; 201 S.C. 519; 163 S.C. 295, 161 S.E. 498. As to the Supreme Court taking notice of any error apparent on the record affecting substantially the rights of the accused, even though not made a ground of appeal: 174 S.C. 295, 177 S.E. 375; 137 S.C. 145, 134 S.E. 885; 210 S.C. 487, 43 S.E.2d 360; 191 S.C. 1, 3 S.E.2d 257; 205 S.C. 412, 32 S.E.2d 164. Mr. Robert W. Hemphill, Solicitor, of Chester, for Respondent, cites: As to the sentence imposed by trial judge being power and not excessive and appellate court has no power to reduce: 158 S.E. 685, 160 S.C. 301; 215 S.C. 450, 55 S.E.2d 785; 212 S.C. 348, 46 S.E.2d 273, 277; 54 S.E.2d 900, 215 S.C. 315; 59 S.E.2d 168, 216 S.C. 579, 71 S.Ct. 78; 127 S.C. 116, 120 S.E. 490; 198 S.C. 98, 16 S.E.2d 532; 216 S.C. 552, 59 S.E.2d 155; 100 S.C. 77, 84 S.E. 304. As to trial judge properly excluding hypothetical questions as asked by defendant's counsel: 187 S.C. 334, 197 S.E. 398, 400; 32 C.J.S. 347; 192 N.E. 378, 489 Ohio App. 71; 162 S.C. 509, 161 S.E. 177, 185. As to trial judge properly admitting in evidence the photographs of the scene of the crime: 201 S.C. 403, 23 S.E.2d 387, 390; 46 S.C. 55, 24 S.E. 60; 300 Mich. 562, 2 N.W.2d 503, 139 A.L.R. 1171; 159 A.L.R. 1413; 179 Va. 359, 19 S.E.2d 69, 140 A.L.R. 527; (Fla.) 83 So. 513, 8 A.L.R. 1034. As to non-expert witness, not having testified to any relevant facts. having no right to give opinion testimony: 20 Am. Jur. 714, Evidence, Sec. 853; 158 Wn. 504, 291 P. 1093, 72 A.L.R. 571; 357 Ill. 117, 191 N.E. 268, 93 A.L.R. 1041. As to duty on solicitor to prosecute vigorously: 218 S.C. 106, 62 S.E.2d 101, 106, 107; 163 S.C. 295, 161 S.E. 496, 498. As to the discretion of the trial court in allowing cross examination not being subject to review except in cases of manifest abuse or injustice: 216 S.C. 579, 59 S.E.2d 168; 215 S.C. 166, 54 S.E.2d 599; 195 S.C. 387, 11 S.E.2d 523; 35 S.E.2d 36, 207 S.C. 126. As to solicitor's argument being proper and accused received a fair and impartial trial: 115 S.C. 214, 105 S.E. 286; 87 S.C. 434, 69 S.E. 1077; 86 S.C. 370, 68 S.E. 684; 210 S.C. 481, 43 S.E.2d 360.
Judges
  • TAYLOR, Justice.
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Cites
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Citation Codes
Equivalent Citations
citation codes
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Attorney(S)
  • Messrs. W.G. Finley and R.B. Hildebrand, of York, for Appellant, cite: As to power of Supreme Court to correct an excessive sentence: 212 S.C. 154, 46 S.E.2d 693; 157 S.C. 364, 135 S.E. 360; 159 S.C. 165, 156 S.E. 353; 209 S.C. 108, 39 S.E.2d 197; (S.C.) 46 S.E.2d 273. As to the sentence imposed being violative of the statutory limitation of ten years: 212 S.C. 154, 46 S.E.2d 693; 107 S.C. 481, 93 S.E. 136, 5 C.J. 807; 127 S.C. 116, 120 S.E. 490-491. As to error on part of trial judge in refusing defendant's counsel the right of asking hypothetical question of testifying family physician: 20 Am. Jur. 668, Sec. 796; 216 S.C. 401, 58 S.E.2d 675. As to error on part of trial judge in admitting photographs of scene of alleged crime, when the only purpose of such photographs was to prejudice minds of the jury: 201 S.C. 230; 194 S.C. 410, 10 S.E.2d 587, 588; 198 S.C. 215, 17 S.E.2d 142; 20 Am. Jur., Evidence, Par. 729. As to a person, though not an expert, who has had opportunity of observing a person being competent to express an opinion as the person's sanity or insanity: 59 S.E. 816, 129 Ga. 717; 63 S.E. 84, 149 N.C. 519; 138 S.E. 318, 103 W. Va. 653; 82 S.C. 395; 20 Am. Jur., Evidence, 852; 72 A.L.R. 579. As to the cross examination conducted by the solicitor, and the argument made by him, being improper and prejudicial and precluding defendant from receiving a fair and impartial trial: 216 S.C. 44, 56 S.E.2d 736; 207 S.C. 126, 35 S.E.2d 38; 143 S.C. 318, 141 S.E. 559; 158 S.C. 251, 155 S.E. 409-421; 210 S.C. 481, 43 S.E.2d 360; 205 S.C. 412, 32 S.E.2d 163; 201 S.C. 519; 163 S.C. 295, 161 S.E. 498. As to the Supreme Court taking notice of any error apparent on the record affecting substantially the rights of the accused, even though not made a ground of appeal: 174 S.C. 295, 177 S.E. 375; 137 S.C. 145, 134 S.E. 885; 210 S.C. 487, 43 S.E.2d 360; 191 S.C. 1, 3 S.E.2d 257; 205 S.C. 412, 32 S.E.2d 164. Mr. Robert W. Hemphill, Solicitor, of Chester, for Respondent, cites: As to the sentence imposed by trial judge being power and not excessive and appellate court has no power to reduce: 158 S.E. 685, 160 S.C. 301; 215 S.C. 450, 55 S.E.2d 785; 212 S.C. 348, 46 S.E.2d 273, 277; 54 S.E.2d 900, 215 S.C. 315; 59 S.E.2d 168, 216 S.C. 579, 71 S.Ct. 78; 127 S.C. 116, 120 S.E. 490; 198 S.C. 98, 16 S.E.2d 532; 216 S.C. 552, 59 S.E.2d 155; 100 S.C. 77, 84 S.E. 304. As to trial judge properly excluding hypothetical questions as asked by defendant's counsel: 187 S.C. 334, 197 S.E. 398, 400; 32 C.J.S. 347; 192 N.E. 378, 489 Ohio App. 71; 162 S.C. 509, 161 S.E. 177, 185. As to trial judge properly admitting in evidence the photographs of the scene of the crime: 201 S.C. 403, 23 S.E.2d 387, 390; 46 S.C. 55, 24 S.E. 60; 300 Mich. 562, 2 N.W.2d 503, 139 A.L.R. 1171; 159 A.L.R. 1413; 179 Va. 359, 19 S.E.2d 69, 140 A.L.R. 527; (Fla.) 83 So. 513, 8 A.L.R. 1034. As to non-expert witness, not having testified to any relevant facts. having no right to give opinion testimony: 20 Am. Jur. 714, Evidence, Sec. 853; 158 Wn. 504, 291 P. 1093, 72 A.L.R. 571; 357 Ill. 117, 191 N.E. 268, 93 A.L.R. 1041. As to duty on solicitor to prosecute vigorously: 218 S.C. 106, 62 S.E.2d 101, 106, 107; 163 S.C. 295, 161 S.E. 496, 498. As to the discretion of the trial court in allowing cross examination not being subject to review except in cases of manifest abuse or injustice: 216 S.C. 579, 59 S.E.2d 168; 215 S.C. 166, 54 S.E.2d 599; 195 S.C. 387, 11 S.E.2d 523; 35 S.E.2d 36, 207 S.C. 126. As to solicitor's argument being proper and accused received a fair and impartial trial: 115 S.C. 214, 105 S.E. 286; 87 S.C. 434, 69 S.E. 1077; 86 S.C. 370, 68 S.E. 684; 210 S.C. 481, 43 S.E.2d 360.
Judges
  • TAYLOR, Justice.
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Smart Summary

Summary of Opinion

Factual and Procedural Background

Appellant William Hugh King was tried at the September 1951 term of the General Sessions Court for York County and convicted of assault and battery with intent to kill upon his wife, Mildred C. King. He was sentenced to ten years' imprisonment. He appealed to the Supreme Court of South Carolina. The appeal raises a series of constitutional, statutory, evidentiary and trial-conduct issues described below.

The underlying events occurred on the night of May 4, 1951. The opinion describes the appellant as having choked and beaten his wife with the heel of a shoe, a bed slat, and a small-caliber rifle, and having attempted to drown her in the bathtub. The victim was hospitalized for eleven days. Appellant testified that his state of mind was induced by his wife's unfaithfulness and his consumption of whiskey and headache powders (BC powders).

Prior to this conviction, appellant had a suspended sentence (two years) with probation for a similar attack on a sister; that probation had been revoked on July 13, 1951, for driving under the influence, and he was serving that sentence at the time of trial. The trial judge ordered the ten-year sentence in this case to commence after expiration of the two-year sentence (i.e., consecutive sentencing).

Legal Issues Presented

  1. Whether the sentence of ten years was excessive.
  2. Whether the sentence was illegal because it violated statutory and constitutional limitations governing punishment for assault and battery with intent to kill.
  3. Whether the trial judge erred in refusing to permit defense counsel to examine Dr. Otha Dunlap (defendant's physician/expert) as to facts within the doctor's own knowledge concerning the effects of BC headache powders and similar preparations on the defendant's physical and mental condition and as to instructions given the defendant about their use.
  4. Whether the trial judge erred in refusing to permit hypothetical questions to Dr. Dunlap (admitted medical expert) about the combined effects of alcohol and BC or similar preparations on mental faculties.
  5. Whether the trial judge erred in admitting large and gruesome photographs showing blood in the room where the assault occurred, when witnesses had already described those facts in detail.
  6. Whether the trial judge erred in admitting as evidence the defendant's bloody shirt and trousers when the defendant himself was shown to be unscratched and the blood apparently came from the prosecuting witness.
  7. Whether the trial court erred in refusing to permit witness E.A. Harris to express his opinion as to the defendant's insanity based on facts known to him.
  8. Whether the trial judge failed to properly charge and differentiate the law distinguishing assault and battery of a high and aggravated nature from assault and battery with intent to kill.
  9. Whether the trial judge failed to properly charge the law regarding what constitutes sufficient legal provocation.
  10. Whether the questions and conduct of the Solicitor on cross-examination of the defendant's witness Harris were prejudicial.
  11. Whether the questions and conduct of the Solicitor in cross-examining appellant King were prejudicial.
  12. Whether the Solicitor's argument to the jury was highly improper and prejudicial.

Arguments of the Parties

Appellant's Arguments

  • The ten-year sentence, when ordered to commence after the two-year sentence he was already serving, amounted to cruel and unusual punishment and violated the State Constitution and applicable statutory provisions.
  • The trial court improperly restricted defense counsel from examining Dr. Dunlap as to facts within the doctor's knowledge concerning BC powders and as to hypothetical questions about combined effects of alcohol and such preparations.
  • The trial court improperly admitted gruesome photographs and bloody clothing, thereby inflaming the jury and prejudicing the defendant.
  • The court improperly refused to allow witness E.A. Harris to state his opinion as to appellant's sanity/insanity.
  • The Solicitor's cross-examination and argument were improper and prejudicial, depriving appellant of a fair trial.
  • The trial judge failed to give adequate jury instructions on distinguishing related offenses and on the law of provocation.

Respondent's Arguments (as reflected in the opinion)

  • The sentence was within the trial judge's sound discretion and was not excessive; appellate court lacks jurisdiction to reduce a sentence within statutory limits unless shown to be the result of partiality, prejudice, oppression or corruption.
  • The trial judge properly excluded hypothetical questions to Dr. Dunlap because the necessary evidentiary foundation for those hypotheses had not yet been laid.
  • The photographs were properly admitted because they were probative to refute the appellant's minimizing of the victim's injuries.
  • A non-expert witness has no right to give opinion testimony on matters where he has not testified to relevant facts; where a witness does testify to facts and then gives an opinion, that circumstance governs admissibility.
  • The Solicitor properly conducted a vigorous cross-examination and prosecution so long as the defendant's right to a fair trial was preserved; no manifest abuse or injustice is shown requiring reversal.

Table of Precedents Cited

The table below catalogs the principal precedents cited in the opinion text and their function as reflected in the opinion.

Precedent Rule or Principle Cited For Application by the Court
State v. Scates, 212 S.C. 150, 46 S.E.2d 693 Supreme Court's jurisdiction to correct an excessive sentence; limits on appellate reduction of sentence. Used by the Court to state the principle that the Supreme Court lacks jurisdiction to correct a sentence that is within statutory limits absent partiality, prejudice or corrupt motive; applied in rejecting appellant's challenge to the sentence.
State v. Bowman, 137 S.C. 364, 135 S.E. 360 Support for the rule limiting appellate correction of sentences within statutory limits. Cited among authorities affirming that sentence discretion lies with trial court and appellate interference is rare; applied in resolving sentencing issues against appellant.
State v. Johnson, 159 S.C. 165, 156 S.E. 353 Support for the rule on appellate review of sentencing discretion. Cited by the Court in stating the rule that appellate courts will not correct sentences within prescribed limits absent improper motive or abuse.
State v. Bolin, 209 S.C. 108, 39 S.E.2d 197 Authority on limits of appellate review of sentencing discretion. Included among cases supporting the Court's treatment of sentencing discretion; applied in denying relief on sentencing grounds.
State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273 Authority on sentencing discretion and appellate limitation. Cited with other authorities to support the Court's conclusion that the trial judge's sentencing discretion was not subject to correction here.
State v. Phillips, 193 S.C. 273, 8 S.E.2d 626 Related authority referenced in the context of sentencing discretion. Listed among supporting authorities for the rule on appellate review of sentencing; relied on in resolving sentencing issues against appellant.
State v. Bell, 215 S.C. 311, 54 S.E.2d 900 Related authority on sentencing and appellate review. Cited as supporting precedent for the Court's view on sentence review; applied in denying relief.
State v. Brandon, 210 S.C. 495, 43 S.E.2d 449 Authority supporting limitations on appellate reduction of sentence. Included among cases the Court relied on to affirm the trial judge's sentencing discretion.
State v. Goodall, S.C. 69 S.E.2d 915 Related authority cited on sentencing discretion. Listed by the Court in support of the sentencing-rule statement and applied in resolving sentencing issues adverse to appellant.
Ellis v. Kansas City Life Ins. Co., 187 S.C. 334, 197 S.E. 398, 400 Rule governing use of hypothetical questions to experts: hypothesis must be based on facts in evidence. Quoted by the Court and applied to uphold the trial judge's exclusion of hypothetical questions to Dr. Dunlap because a factual basis had not yet been laid at the time.
32 C.J.S., Evidence, § 551 Text authority that an expert may be examined by hypothetical questions grounded in competent evidence. Cited by the Court to support its ruling that hypothetical questions require supporting evidence and to affirm exclusion of such questions at the stage they were asked.
State v. Robinson, 201 S.C. 230, 22 S.E.2d 587 Authority on admissibility of photographs and possible prejudice. Cited by appellant in arguing photographs were prejudicial; the Court considered this line of cases but distinguished them and upheld admission of photographs here.
State v. Edwards, 194 S.C. 410, 10 S.E.2d 587 Precedent on photographic evidence and prejudice. Cited by appellant and considered by the Court; the Court determined photographs were admissible to contradict appellant's minimization of injuries.
State v. Mishoe, 198 S.C. 215, 17 S.E.2d 142 Precedent regarding prejudicial nature of photographic evidence. Referenced by appellant; the Court distinguished these authorities and sustained admission of the photographs in this case.
Potts v. People, 114 Colo. 253, 158 P.2d 739, 159 A.L.R. 1413 Authority supporting admissibility of photographs to rebut testimony minimizing injuries. Cited by the Court as support for admitting the photographs to refute appellant's contemporaneous minimizing of the victim's injuries; applied to uphold admission.
State v. Stockman, 82 S.C. 388, 64 S.E. 595 Authority on non-expert witnesses and opinion on sanity/insanity. Cited by the Court in discussing when a lay witness may express an opinion as to sanity; the Court noted that, because Harris ultimately described behavior and gave an opinion, the complaint was resolved against appellant.
12 S.E. Digest, Criminal Law, Key 452-2 Digest reference on testimony regarding sanity/insanity. Cited as supporting authority in the Court's discussion of opinion testimony about sanity; the Court resolved the point against appellant on the facts.
72 A.L.R. 579 Annotated authority regarding testimony as to sanity/insanity. Referenced by the Court in discussing admissibility of such opinion testimony; applied in the context of the Harris testimony.
State v. Murphy, 216 S.C. 44, 56 S.E.2d 736 Authority on improper personal abuse of witnesses and solicitor conduct; reversal when fair trial is denied. Cited by the Court as part of the body of law governing solicitor conduct; the Court held the record did not show such abuse here and declined to reverse.
State v. Warren, 207 S.C. 126, 35 S.E.2d 38 Authority on solicitor conduct and trial fairness. Included among authorities the Court cited in evaluating claims of prosecutorial misconduct; applied in concluding no reversible error.
State v. Kennedy, 143 S.C. 318, 141 S.E. 559 Authority addressing misconduct by counsel and protection of defendant's rights. Cited in the Court's review of the solicitor's conduct; the Court found no basis to reverse on that ground.
State v. King, 158 S.C. 251, 155 S.E. 409 Authority on improper prosecutorial conduct affecting fairness of trial. Referenced by the Court in its consideration of alleged prosecutorial abuses; applied in concluding defendant received a fair trial.
State v. Bealin, 201 S.C. 490, 23 S.E.2d 746 Statement of the solicitor's quasi-judicial role and duty to preserve fairness. Quoted by the Court to describe the solicitor's duties; applied in assessing the solicitor's conduct in this case and finding no reversible misconduct.
State v. Parris, 163 S.C. 295, 161 S.E. 496 Authority on solicitor duties and courtroom conduct. Cited by the Court in connection with the review of the prosecutor's conduct; applied in concluding prosecution was vigorous but fair.
State v. Maxey, 218 S.C. 106, 62 S.E.2d 100, 106 Authority addressing the solicitor's duty to prosecute vigorously yet fairly. Quoted by the Court to support the proposition that vigorous prosecution is proper if not unjust to defendant; applied to deny relief on prosecutorial-conduct claims.
State v. McGill, 191 S.C. 1, 3 S.E.2d 257 Authority discussing the solicitor's quasi-judicial role and restraints on prosecutorial conduct. Quoted by the Court in assessing the solicitor's conduct; applied in confirming that the solicitor's vigorous cross-examination did not amount to reversible abuse here.

Court's Reasoning and Analysis

The Court addressed the questions in the opinion, engaging in the following principal legal analysis as stated in the text:

  1. Sentencing (Questions 1 and 2): The Court explained the governing rule that the Supreme Court lacks jurisdiction on appeal to correct a sentence alleged to be excessive when it is within statutory limits and not the result of partiality, prejudice, oppressive or corrupt motive. The Court concluded that whether a sentence runs consecutively or concurrently is within the trial judge's discretion, and that the facts here did not present rare or unusual circumstances warranting interference. Accordingly, the Court resolved questions one and two against appellant.
  2. Expert/hypothetical questions to Dr. Dunlap (Questions 3 and 4): The trial judge excluded hypothetical questions about the combined effects of alcohol and BC powders because, at the time they were asked, there was no evidence in the record establishing the factual basis required to support the hypotheses. The Court quoted Ellis v. Kansas City Life Ins. Co. and 32 C.J.S. on the principle that hypothetical questions to experts must be based on facts supported by competent evidence, and it held the trial judge's rulings correct. The opinion also notes that no attempt was made to recall Dr. Dunlap after appellant testified that he had consumed drugs and liquor; the Court therefore found no error.
  3. Photographs and bloody clothing (Questions 5 and 6): Although appellant argued that photographs and bloody clothing were cumulative and introduced only to inflame the jury, the Court observed that appellant had attempted to minimize the severity of his wife's injuries. The photographs (four in number) showing blood in the room were therefore probative to rebut appellant's testimony and were admissible. The Court cited Potts v. People as supportive authority and rejected appellant's contention.
  4. Lay opinion as to insanity (Question 7): Appellant claimed error in excluding opinion testimony from witness E.A. Harris. The Court reviewed the trial colloquy and found that, despite an objection, the witness described the defendant's conduct and ultimately gave his opinion about the defendant's condition. Because the witness had in fact related descriptive facts and expressed an opinion, the Court resolved this contention against appellant, citing State v. Stockman and related authorities.
  5. Solicitor's cross-examination and argument (Questions 10–12): The Court examined the record and noted there was no contemporaneous objection to much of the complained-of conduct and that the complaint was first raised on motion for a new trial. Although the cross-examination was "very thorough and vigorous," the Court found no evidence of unjust or improper conduct amounting to denial of a fair and impartial trial. The Court cited several authorities outlining a solicitor's duty to prosecute vigorously yet fairly and concluded the trial court did not abuse its discretion.
  6. General assessment: The Court observed the case was hard-fought and that appellant had able counsel, but the evidence was overwhelming. The Court found nothing indicating appellant was denied a fair trial.

Holding and Implications

Holding: The Court resolved all contested issues against the appellant and affirmed the trial court's judgment and the sentence as imposed (i.e., the conviction and the ten-year sentence, ordered to commence after the two-year sentence, were upheld).

Implications: The direct consequence is that appellant's conviction and the consecutive sentencing order stand. The Court applied established South Carolina precedent regarding sentencing discretion, admissibility of expert hypothetical testimony, admissibility of probative photographic evidence, and limits on reversal for alleged prosecutorial misconduct. The opinion does not announce new precedent; it applies existing authorities to the facts and concludes there was no reversible error in the trial court proceedings.

Show full summary ...

STATE v. KING

July 25, 1952.

TAYLOR, Justice.

Appellant, William Hugh King, was tried and convicted of committing assault and battery with intent to kill upon his wife, Mildred C. King, at the September, 1951, term of General Sessions Court for York County, for which he was sentenced to serve a term of ten years imprisonment. He now appeals to this Court upon exceptions which present the questions for determination by this Court of whether or not:

1. The sentence of the court was excessive.

2. The sentence of the Court was illegal in that it violated the statutory and constitutional limitations on the sentence provided by law for the crime of assault and battery with intent to kill.

3. His Honor erred in refusing to permit counsel for the defendant to examine Dr. Otha Dunlap, the defendant's personal physician and an admitted medical expert, as to facts peculiarly and particularly within his own knowledge as to the effects of BC headache powders and like preparations on the physical and mental condition of the defendant and as to the instructions the said doctor afterwards gave him with reference to the use thereof.

4. His Honor erred in refusing to permit defendant's counsel to propound to Dr. Dunlap as a medical expert, whose qualifications were admitted, hypothetical questions as to the effect of the use of alcohol and BC or similar headache or medical preparations in combination upon the mental faculties of the person so using them.

5. His Honor erred in admitting in evidence large and gruesome pictures showing great quantities of blood upon the bed, bed clothes, the four (4) walls and other parts of the room wherein the alleged assault occurred when numbers of witnesses had testified thereto and described same in minutest detail, the effect of introduction of such gruesome pictures being solely to prejudice and inflame the minds of the jury against the defendant.

6. His Honor erred in permitting the introduction of the defendant's bloody shirt and trousers in evidence, the testimony being the defendant himself was unscratched and not wounded and that the blood could have only come from the body of the prosecuting witness, the defendant's wife. The condition of the said clothes having been fully described by witnesses and the only effect on the jury viewing such exhibits being to inflame their passions and prejudice them against the defendant.

7. It was error to refuse to permit the witness, E.A. Harris, to express his opinion as to the insanity of the defendant based upon the facts and circumstances known to and related by him.

8. His Honor failed to charge fully and differentiate the governing principles of the law distinguishing the crime of assault and battery of a high and aggravated nature from assault and battery with intent to kill.

9. His Honor failed to charge the law with reference to what constitutes sufficient legal provocation as applicable in this case.

10. The questions and conduct of the Solicitor on the cross examination of the defendant's witness, Harris, was prejudicial.

11. The questions and conduct of the Solicitor in the cross examination of the defendant King was prejudicial.

12. The argument of the Solicitor to the jury was highly improper and prejudicial.

On the night of May 4, 1951, Appellant proceeded to choke and beat his wife in a most horrible manner, using the heel of a shoe, a bed slat, and a small caliber rifle. Finally, he tried to drown her in the bathtub and probably would have accomplished his purpose except for the timely arrival of the officers, as he is quoted as saying "Don't you know you are going to die tonight?" All of which resulted in her being hospitalized for a period of eleven days. Appellant testified that his state of mind was induced by his wife's unfaithfulness and his having consumed a large amount of whiskey and drugs known as headache powders.

Prior to Appellant's conviction in this case, he had been sentenced to serve a period of two years, with sentence suspended and Appellant being placed on probation, for a similar attack upon a sister. He was actually serving this sentence at the time of trial of this case as his probation had been revoked by Judge Moss on July 13, 1951, for operating a motor vehicle while under the influence of intoxicants. The Presiding Judge in passing sentence provided that the sentence in this case was to commence after the expiration of the one he was then serving. Appellant now contends such sentence amounts to cruel and unusual punishment and is in violation of Section 19, Article 1 of the South Carolina Constitution which provides that excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishment inflicted, and in violation of Section 1038, Code of 1942, which provides:

"In cases of legal conviction, where no punishment is provided by statute, the court shall award such sentence as is conformable to the common usage and practice in this State, according to the nature of the offense, and not repugnant to the Constitution."

"[The Supreme Court] has no jurisdiction on appeal to correct a sentence alleged to be excessive when it is within the limits prescribed by law in the discretion of the trial judge, and is not the result of partiality, prejudice, oppressive or corrupt motive. * * * The exercise of a sound judicial discretion must and should be performed in every case with a conscientious regard as to what is just and proper under the circumstances." State v. Scates, 212 S.C. 150, 46 S.E.2d 693; State v. Bowman, 137 S.C. 364, 135 S.E. 360; State v. Johnson, 159 S.C. 165, 156 S.E. 353; State v. Bolin, 209 S.C. 108, 39 S.E.2d 197; State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273; see also, State v. Phillips, 193 S.C. 273, 8 S.E.2d 626; State v. Bell, 215 S.C. 311, 54 S.E.2d 900; State v. Brandon, 210 S.C. 495, 43 S.E.2d 449; and State v. Goodall, S.C. 69 S.E.2d 915.

Appellant does not contend that the sentence of ten years within itself amounts to cruel and unusual punishment, but that when the ten year sentence is to commence after the service of a two year sentence which Appellant was then in the process of serving, it does amount to cruel and unusual punishment and cites State v. Crosby, 160 S.C. 301, 158 S.E. 685. With this we do not agree. It was certainly within the discretion of the Trial Judge whether Appellant's sentence was to run concurrently or consecutively with one which he was then serving. It is only in rare and unusual circumstances that this Court will interfere with the discretion of the Trial Judge in the imposition of a sentence. The sentence of the Trial Judge was a discretionary matter and in the instant case was within the limitations prescribed. The circumstances are not so unusual as to warrant this Court interfering. Questions one and two are therefore resolved against Appellant.

Dr. J.O. Dunlap was called as a witness on behalf of the state and Appellant upon cross examination sought to propound to the doctor hypothetical questions relative to the effect of alcoholic liquors and BC headache powders upon the mind of one who takes excessive amounts of each. The Trial Judge ruled out these questions on the ground that there was no evidence up to this time of Appellant having taken alcohol and BC powders simultaneously, stating:

"I am limiting you to the proof in this case * * * Understand you have a right to propose a hypothetical question, but not until the evidence has been adduced from which the hypothesis can be based. I have ruled that there is no evidence in this case that the Defendant or anybody else connected with it has been taking drugs of any kind, and until that is done the doctor cannot be asked about it."

Later on an effort was made to cross examine the doctor as to matters purported to be within his knowledge as to the effects of the above, he being the family physician. Permission was again refused on the same ground as above.

"Hypothetical Questions — Assumption of facts in putting a question may be regarded as a test of whether a witness is being examined as an expert. The expert, properly so called, is asked what would be his judgment upon all or any prescribed part of the facts, as to which evidence has been lawfully received, or which has been admitted, assuming that they are true; provided that a sufficient number of facts are assumed to enable the witness to give an intelligent opinion. The witness having no facts in mind as the result of observation, it is in this way alone that a proper basis for a reasonable judgment can be furnished, and the witness cannot add to the hypothetical question facts within his own knowledge and not in evidence. The requirement that the question should be in hypothetical form, stating fact of which there is some evidence in the case, continues throughout the examination of the expert, * * *. Different hypotheses may be submitted to the witness for different parties, provided the facts embraced in each hypothesis have some support in the evidence.'" Ellis v. Kansas City Life Ins. Co., 187 S.C. 334, 197 S.E. 398, 400.

"An expert witness may be examined by means of a hypothetical question based on facts supported by competent evidence and claimed to be proved, thereby eliciting the witness' opinion as to the inferences properly deducible from such facts, and such a question is the only way an expert may be examined if the facts are not within his personal knowledge or observation." 32 C.J.S., Evidence, § 551, page 347.

The Trial Judge was correct in ruling out the questions at that stage of the trial and no attempt was made to recall Dr. Dunlap for this purpose after Appellant had testified to his being under the influence of drugs and liquor. We therefore see no error therein, and are of the opinion that questions three and four should be resolved against the contentions of the Appellant.

Appellant next contends that photographs which were introduced into the evidence were done so for the purpose of prejudicing and inflaming the minds of the jury. These photographs were four in number, showing the blood on the walls, bed and bathroom where the assault was alleged to have taken place. Appellant contends that such had been testified to in minute details and that the introduction of such photographs came within the rulings of this Court in the State v. Robinson, 201 S.C. 230, 22 S.E.2d 587; State v. Edwards, 194 S.C. 410, 10 S.E.2d 587; State v. Mishoe, 198 S.C. 215, 17 S.E.2d 142. With this we do not agree. Appellant contended that he did not beat his wife nearly so severely as she testified and attempted to minimize her injuries. The pictures of the room made shortly after the attack were strong evidence to refute such testimony and therefore proper. See, Potts v. People, 114 Colo. 253, 158 P.2d 739, 159 A.L.R. 1413.

Appellant next contends that it was error not to permit witness E.A. Harris to express his opinion as to the insanity of the defendant. A portion of this testimony appears as follows:

"Q. Now, that night were you with Mr. Arnett when you took him home from the pool room? A. Yes, sir.

"Q. What was his condition with reference to being — A. Well, I told Earl —

"Mr. Hemphill: Wait a minute. We object to that.

"By Mr. Finley:

"Q. Don't say what you told Earl, but what was his condition when he got home — his mental condition?

"Mr. Hemphill: Object to that. He can tell what the facts were. He doesn't know what his mental condition was.

"By Mr. Finley:

"Q. Well, his physical condition, and his manner of acting, and saying? A. He acted pretty wild. I never seen him act that way before and I had been out with him a number of times.

"Q. All right, sir, did he know where he was after he left the pool room? A. No, sir.

"Q. Then you left him at home about what time? A. About a quarter to nine or nine. Somewhere around there.

"Q. When you left him at home, Mr. Arnett, did Hugh King from the way he talked, acted — was it your opinion that —

"Mr. Hemphill: Let him tell the facts. He can't give his opinion. That is for the jury, your Honor. Ask him what was wrong with him if anything.

"The Court: Let him describe how he acted."

If the testimony had ended there we would be inclined to agree with Appellant's contention that it was error not to permit the witness to express his opinion as to Appellant's sanity or insanity. State v. Stockman, 82 S.C. 388, 64 S.E. 595; 12 S.E. Digest, Criminal Law, Key 452-2; 72 A.L.R. 579. However, in the instant case, the testimony did not end with that heretofore related, but continued as follows:

"Q. All right, sir, just tell how he acted? A. Well, he went across the street and was hollering and using pretty loud words. I mean he wasn't boisterous or nothing but he talked out pretty loud and hollered and I knew he wasn't just right when he was doing that because I had never seen him do it before and when he got down the street he jumped out of the car just about the time we got stopped and we had to get out and grab him and get him back in the car.

"Q. That is when you had taken him home? A. Yes, sir: when we was on our way home.

"Q. And you left him at home at nine o'clock? A. Yes, sir.

"Q. And when you left him there then was he still in that condition? A. Yes, sir."

It is therefore clear that although the objection of the Solicitor was sustained, the witness answered the question and gave his opinion as to the mental condition of Appellant. Having done so, this question must be resolved against Appellant.

Appellant next charges error in the Solicitor's cross examination of Appellant and his witness.

"`"Uncalled for personal abuse of a witness by counsel is objectionable, and will not be condoned or allowed by the court." If the record in any case shows that this salutary rule has been violated, and the effect was, in this court's opinion, to prevent one charged with crime from having the fair and impartial trial, guaranteed to him under the Constitution of this state, this court will exercise its power to uphold the Constitution by reversing the case, with the purpose of giving a defendant the trial to which he is entitled.'" State v. Murphy, 216 S.C. 44, 56 S.E.2d 736, 739; State v. Warren, 207 S.C. 126, 35 S.E.2d 38; State v. Kennedy, 143 S.C. 318, 141 S.E. 559; State v. King, 158 S.C. 251, 155 S.E. 409.

"`He (the Solicitor) should bear in mind that he is an officer of the court, who represents all the people, including accused, and occupies a quasi-judicial position, whose sanctions and traditions he should preserve. It is his duty to see that justice is done. He must see that no conviction takes place except in strict conformity with the law, and that accused is not deprived of any constitutional rights or privileges. However strong the prosecuting attorney's belief may be of the prisoner's guilt, it is his duty to conduct the trial in such a manner as will be fair and impartial to the rights of the accused, * * * and not say or do anything which might improperly affect or influence the jury or accused's counsel. He should not abuse or make any unseemly demonstration toward accused; abuse or make baseless insinuations against his witnesses; make remarks or insinuations calculated to impress the jury against accused'." State v. Bealin, 201 S.C. 490, 23 S.E.2d 746, 758. See also State v. Parris, 163 S.C. 295, 161 S.E. 496; State v. Murphy, 216 S.C. 44, 56 S.E.2d 736.

The record discloses that there was no objection on the part of Appellant to that portion of the cross examination now complained of and only upon motion for a new trial was this complaint first made. Further examination of the testimony shows that by far the greater portion of this testimony was in reference to previous testimony of Appellant and his witnesses. The cross examination was very thorough and vigorous, but this does not mean that the Solicitor was in any wise unjust to the defendant. His duty to see that Appellant received a fair trial in nowise impinged upon his duty to prosecute vigorously. In the present case of State v. Maxey, 218 S.C. 106, 62 S.E.2d 100, 106, this Court stated:

"It was stated in State v. McGill, [ 191 S.C. 1, 3 S.E.2d 257] supra, with reference to the solicitor: `He "is a quasi judicial officer, and this court has repeatedly held that a solicitor must not, because of the high position he holds, say things, or do things, which would have any effect to prevent a citizen, however humble, from obtaining the fair and impartial trial he is entitled to under the law." State v. Parris, 163 S.C. 295, 161 S.E. 496, 498. But this does not mean that he should not prosecute vigorously so long as he is just to the defendant, his duty to the State being co-existent with his duty to see that the accused is given a fair trial.'"

Appellant next contends that the Solicitor's argument was improper and resulted in his prejudice, but there was no objection at the time and no statement is cited to substantiate this contention. Exceptions 6, 8 and 9 have been abandoned.

There was a lot of interest in this case, and it was hard fought. Appellant was represented by very able counsel who were alert to every possibility on behalf of Appellant, but the evidence was so overwhelming that it is difficult to see how the results could have been other than they were. There is nothing in the record to indicate that appellant did not receive a fair and impartial trial.

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STATE v. KING
(Jul 25, 1952)