Opinion
9398
June 28, 1916.
Before MOORE, J., Greenwood, Spring term, 1915. Affirmed.
The defendant, Luke McKinney, was indicted for assault and battery, with intent to kill. He was convicted of assault and battery of a high and aggravated nature, and sentenced to two years in prison and appeals.
Messrs. Tillman Mayes for appellant, submit: Declaration was not part of res gestae, and cite: 13 S.C. 463; 56 S.C. 369; 68 S.C. 277; 76 S.C. 92; 68 S.C. 310; 94 S.C. 92.
Mr. Solicitor Cooper, for respondent, cites: 13 S.C. 459; 41 S.C. 459; 41 S.C. 526; 47 S.C. 9; 65 S.C. 1; 68 S.C. 369; 68 S.C. 276 and 304.
June 28, 1916. The opinion of the Court was delivered by
On trial of defendant for assault and battery with intent to kill, a witness, Brown, testified on the part of the State that he was working in the room in which the fight occurred; that he did not see the fight, but heard some one hollo, and looked and saw Smith, the prosecutor, holding his left side and bending over; that he ran to him, but, before he did, saw the defendant going through the door; that when he got to Smith (and he said he was the first one to get to him), he asked him what was the matter; that he replied, "Oh, Brown, McKinney has cut me all to pieces;" that he asked, "What did you let him do that for?" and he replied, "He cut me before I knew what he was doing." The single question is whether this declaration was properly admitted as part of the res gestae. The following cases show that it was: State v. Belcher, 13 S.C. 459; State v. McDaniel, 68 S.C. 304, 47 S.E. 384, 102 Am. St. Rep. 661; State v. Way, 76 S.C. 91, 56 S.E. 653; State v. Martin, 94 S.C. 92, 77 S.E. 721.
Judgment affirmed.