Opinion
12533
November 30, 1928.
Before JOHNSON, J., JASPER, June, 1927. Affirmed.
W.E. Cleland was convicted of manslaughter, and he appeals.
The following are the trial Judge's charge and the exceptions:
CHARGENow, Mr. Foreman and Gentlemen of the Jury, the defendant at the bar, W.E. Cleland, stands charged that in the manner and at the time and place stated in the indictment he did commit the crime of murder; that is. that he slew the deceased with malice aforethought. The charge of murder, I may say just here, also includes another charge of a lower or lesser degree, namely, manslaughter. Under the charge on the part of the state, the defendant pleads generally not guilty, and sets up the plea of self-defense, and therefore, it becomes your duty to inquire into his guilt or innocence under the law of this state.
I may say that the charge on the part of the state, followed by the plea on behalf of the defendant, sets up the issues or questions that are to be decided in this case. The issues of law are primarily for the Court; the issues of questions of fact are primarily for the jury, the Court being concerned chiefly with a solution of the questions of law involved in the case and instructing the jury in the law applicable to the case, whereas, the jury is concerned chiefly in deciding the questions of fact arising out of the testimony in the case, and then applying the facts as found by it to the law given by the Court. I may also say that the charge of murder, embracing the charge of manslaughter, brought by the state against this defendant, followed by his plea of self-defense, imposes upon you and upon me certain duties which by our oaths we are bound to discharge without fear or favor, sympathy or prejudice, friendship or enmity, honestly and conscientiously in a sincere effort to let the result of our labors speak the truth. For that, after all, is what the word verdict means — truth. It is my duty to see that both the state and the defendant receive a fair and impartial trial. It is also my duty, as I have previously intimated, to instruct you in the law applicable to the case. It is your duty to hear the testimony; to sift it; to analyze it; to weight it in an imaginary pair of scales; and decide the facts in the case. And, when you have done that, then you apply to those facts the law that the Court gives you, and write your verdict, and in no other way can this or any other jury arrive at an honest verdict. Allow me to impress upon you that, inasmuch as I am the sole judge of the law in the case, so are you the sole judges of the facts in the case; and, therefore no act of mine is intended as, nor can it be construed by you as, an intimation of my views on the matter. You are just as supreme in your sphere as I am in mine. You cannot invade my province to say what the law is, nor can the lawyers, the Court, or any one else, invade your province to say what the facts of the case are.
I charge you further that, whenever the state brings to the bar of justice one of its citizens charged with the commission of a public offense, commonly called crime, that citizen becomes clothed in the presumption of innocence, which means that he is presumed to be innocent until the state satisfies the jury of his guilt beyond a reasonable doubt. Now, what does reasonable doubt mean? I charge you first that it does not mean a mere fanciful doubt, or whimsical doubt, but a well-founded substantial doubt arising out of the testimony — a doubt for which an honest juror, honestly in search of the truth, can give an honest reason, out of the evidence. The term reasonable doubt means exactly what the words imply. I charge you that the state is not required to prove guilt beyond all doubt, nor is the state required to prove guilt beyond a dead moral certainty, but it is required to prove guilt beyond a reasonable doubt. And so, if on this case as a whole you should have a reasonable doubt as to whether the defendant be guilty or innocent, it would be your duty to decide that doubt in his favor and write a verdict of not guilty. If also you should have a reasonable doubt as to whether or not he had made out his special plea of self-defense, it would be your duty to resolve the doubt in his favor and write a verdict of not guilty. If, from the evidence in the case and the law as given you by the Court, you should have a reasonable doubt as to whether he is guilty of murder or manslaughter, it would be your duty to decide that in his favor, and write a verdict for the lower offense, which would be manslaughter. On the other hand, on the charge of manslaughter you should have no doubt, if the state has convinced you of his guilt of murder or manslaughter beyond a reasonable doubt, it would be your duty to write a verdict of guilty. You are not concerned with the sentence of the Court.
I charge you further that every killing of one human being by another falls in one of three classes. Either justifiable homicide, or excusable homicide, or felonious homicide, and it is only for the latter that the law undertakes to mete out punishment. To illustrate, or explain the difference: Justifiable homicide is where one shoots an enemy in war, or where a public executioner electrocutes a prisoner, or where an officer having in custody a prisoner charged with a felony shoots him to prevent his escape. Excusable homicide is where one kills another accidentally, or in defense of his home, or in defense of his own person or the person of a near relative. Felonious homicide is the killing of one human being by another without justification, and is either murder or manslaughter, depending upon the presence or absence of malice. Murder is the killing of one human being by another with malice aforethought, either expressed or implied. Now, what is malice? In law, the doing of a wrongful act, conscious, deliberate, willful, intentional, or without just cause or excuse. Expressed malice is expressed by some outward act — by lying in wait for another, by ambushing one, making threats against one. Implied malice is where the jury has the right to infer or presume, from the use of a deadly weapon, or where it appears that it has been an intentional killing, or done with a deadly weapon, then the jury has the right to infer that the killing was done with malice. I charge you that, when all the testimony is in, when all of the facts and circumstances have been brought out, then that presumption of malice disappears, and the state is required to prove malice beyond a reasonable doubt. But whether the malice be expressed malice or implied malice, if it actually accompanied the intentional act, taking of human life, the result is murder. Malice may not be in the mind for any length of time — it may be at the time the actual shot is fired or the fatal blow is struck. So much for murder.
The other form of felonious homicide is manslaughter, That is, the unlawful killing of one human being by another without malice. You remember, murder is the killing of one human being by another with malice; manslaughter is the unlawful killing of one human being by another without malice. Or, perhaps more frequently defined, it is the killing of one human being by another in sudden heat and passion upon sufficient legal provocation. The law recognizes the frailties of human nature, and appreciates the fact that there may be occasions in one's life when he may lose control of himself temporarily, be swept off his feet, to act upon the spur of the moment rather from premeditation or design. And, if under those circumstances one slay his fellow man, the law will not excuse him entirely, but will not visit upon him the extreme penalty it would have if the act had been accompanied by malice. I charge you that the provocation which the law recognizes as being one sufficient to reduce the homicide from murder to manslaughter must be such as to involve some indignity to throw a man in sudden heat and passion. To illustrate: If a husband should find another guilty of adultery with his wife. The average man would lose control of himself temporarily, would act upon impulse, upon the spur of the moment rather than with premeditation; likewise, if one should detect another in the act of intercourse with his daughter, and he acting upon impulse should slay his fellow man, he would be guilty of manslaughter. So, also by way of illustration, if he should meet another on the street and that one should pull his nose, or spit in his face, and on the spur of the moment he should slay him, he would be guilty, not of murder, but of manslaughter. I charge you that words, however opprobrious, could never be sufficient to reduce a homicide from murder to manslaughter.
Now, as to the special plea of self-defense I charge you that, when made out or proved by the defendant in accordance with the principles that I will now give you, self-defense is a perfect defense, but he who pleads it, sets up self-defense, must prove it. Not beyond a reasonable doubt as the state is required to prove guilt, but a lesser, by the greater weight of the evidence. I charge you that the greater weight of the evidence is nothing more or less than the greater weight of the truth. I charge you specifically the greater weight of the evidence does not mean the swearing of a greater number of witnesses, because in Courts of justice witnesses are classed in value and not in number, because a jury may find the truth in the mouth of one witness. Where the truth lies, there lies the greater weight of the evidence. I say here, ordinarily, he who pleads self-defense must prove four things, and he must prove them by the greater weight of the evidence, but in this particular case I charge you that the defendant is required to prove only three things by the greater weight of the evidence, but, if he fails to prove any one of these three, then his plea of self-defense falls to the ground. First, he must prove to the jury by the greater weight of the evidence that he was without fault in bringing on the difficulty. That is, law is founded upon common sense, and the plea of self-defense is based upon necessity, and no man can bring on a difficulty and plead necessity of taking human life. Second, he must go a step further and satisfy you by that same degree of proof, the greater weight of the evidence, that, at the time the fatal blow was struck or the fatal shot fired, he believed he was in imminent danger of losing his own life or of suffering serious bodily harm, and it was necessary to act as he did to protect himself from losing his life or of suffering serious bodily harm. Has the defendant satisfied you as to these two things? If so, he must go a step further and satisfy you by the greater weight of the evidence that a man of ordinary firmness, prudence, and courage would have reached the same conclusion as he did. It is not what an unusual man would have done under similar circumstances, but what a man of ordinary firmness, prudence, and courage would have done under like circumstances.
These are the three elements that are necessary for the defendant to make out in this case in order to establish his plea of self-defense: First, that he must be without fault in bringing on the difficulty; second, that he believed that he was in imminent danger of loss of his own life, or of suffering serious bodily harm; third, that this belief in his mind was a reasonable belief.
Now, gentlemen, it is within your province to return one of four verdicts in this case, depending upon how you view the testimony, depending upon what weight you give the testimony, depending upon what weight you give the testimony: First, it is within your province to return a verdict of guilty, which would mean guilty of murder, the punishment for which would be death by electrocution; second, it would be within your province to return a verdict of guilty of murder with a recommendation to the mercy of the Court, the punishment for which would be life imprisonment at hard labor; third, it is within your province to return a verdict of guilty of manslaughter, the punishment for which would be from 2 to 30 years at hard labor in the discretion of the Court; fourth, it is within your province to return a verdict of not guilty, which, of course, means the discharge of the defendant.
Take the indictment, Mr. Foreman, and upon the back of it write the truth, because upon the back of that indictment you will see the word "Verdict" printed, and that is what the word means, truth. Take the indictment and write your verdict and sign your name as foreman.
EXCEPTIONSException 1: It was error on the part of his Honor, the presiding Judge, in view of the testimony and in view of the request of the attorney for the defendant, who made the request as follows: "Asks the Court to charge the law, that a party on his own premises does not have to retreat, but can stand his grounds," to fail to state such law affirmatively.
Exception 2: That the presiding Judge committed error of law, in that he did not affirmatively state to the jury, as requested by the attorney for the defendant to charge the law of self-defense where a defendant is on his own premises, especially in view of the fact that the attorney for the defendant had requested the Court to charge that a party on his own premises does not have to retreat, but can stand his ground.
Exception 3: That the presiding Judge, it is respectfully submitted, committed error of law, or the defendant was greatly prejudiced in his trial, by the form of the charge, wherein the presiding Judge neglected to charge affirmatively that a person on his own premises does not have to retreat, but can stand his ground.
Exception 4: That while the presiding Judge charged the jury as follows: "First, that he must be without fault in bringing on the difficulty; second, that he believed that he was in imminent danger of loss of his own life, or of suffering serious bodily harm; third, that this belief in his mind was a reasonable belief"; and while the presiding Judge also charged the jury as follows: "I say here, ordinarily, he who pleads self-defense must prove four things and he must prove them by the greater weight of the evidence, but in this particular case, I charge you that the defendant is required to prove only three things by the greater weight of the evidence, but if he fails to prove any one of these three, then his plea of self-defense falls to the ground"; and while the presiding Judge charged that: "These are the three elements that are necessary for the defendant to make out in this case in order to establish his plea of self-defense" — it is submitted that this was error on the part of the presiding Judge, in view of the request to charge made by the defendant's attorney, and in view of the law of the state, to fail to charge the jury that a person on his own premises does not have to retreat, but can stand his ground. This should have been charged by the Judge, because there is under the law four elements of self-defense; the Judge had told the jury that there were four elements of self-defense; and the Judge had not told the jury that a person on his own premises would not have to retreat, but could stand his ground; and it being submitted that the testimony in this case discloses that the defendant was on his own premises, and under the law would not have to retreat.
Mr. George Warren, for appellant, cites: Failure to make requested charge error here: 49 S.C. 308; 122 S.E., 771. Duty of Court to charge jury in criminal case the law of the case whether requested or not: 12 Cyc., 659. Request for more extended charge should be given: 32 S.E., 300; 10 S.E., 792; 31 Miss., 504; 39 S.C. 97; 51 N.E., 1024; 11 Tex. App., 306; 43 Ind., 371.
Solicitor Randolph Murdaugh, for respondent, cites: Court may properly refuse to entertain requested charge when same not made at proper time: 88 S.C. 162; 78 S.C. 398; 99 S.C. 250; 110 S.C. 278. Requested charge must be presented in writing: 79 S.C. 129; 50 S.C. 405; 62 A.S.R., 837. As to sufficiency of charge on self defense: 71 S.W. 748; 85 S.C. 64.
November 30, 1928. The opinion of the Court was delivered by
The defendant, W.E. Cleland, a white man, about 35 years old, resident of Hampton County, was charged in an indictment with the murder of a Negro man by the name of Ned Newton, residing on a plantation of the defendant in Jasper County. The case was tried in the Court of General Sessions for Jasper County, June 21, 1928, and resulted in a verdict of guilty of manslaughter, whereupon the presiding Judge, his Honor, J. Henry Johnson, sentenced the defendant to imprisonment from two to four years in the state penitentiary or on the public works of Jasper County for a like period, from which sentence the defendant has appealed to this Court, upon exceptions which will be incorporated in the report of the case.
There are four exceptions, but, as stated in the agreed statement of the transcript, the main question involved in the appeal is whether or not the trial Judge committed error in failing to affirmatively charge the jury as requested by Mr. Purdy, counsel for the defendant, as follows:
"Mr. Purdy: Asks the Court to charge the law that a party on his own premises does not have to retreat, but can stand his ground."
For a better understanding of the question presented, it is well to refer to the facts in the case.
The defendant owned a plantation in Hampton County on which he resided, and also had a farm in Jasper County on which farm Ned Newton, the deceased, worked for the defendant as a sharecropper, and resided thereon. On the day Newton was shot, June 13, 1926, the defendant went to the house in which Newton was living on this farm for the purpose of seeing him on business in connection with the crops which he was cultivating for the defendant. As to what transpired when the defendant arrived at the house in which Newton was living, the facts are in dispute. The defendant and Mr. Griner, one of the young men who accompanied him, testified to one state of facts and the wife and son of Newton testified to another state of facts. But it is evident that the defendant was very much displeased with the conditions he found there, and made complaint about the lack of care of the property left in charge of Newton, and about the crop not being worked. Newton was not at the house when the defendant first arrived, and it was contended by Newton's wife and son that the defendant cursed and struck the son before Newton arrived at the house. This, however, was denied by the defendant and Mr. Griner. It was also contended by Newton's wife and son that the defendant was drunk. This was denied by the defendant, though he admitted having taken a drink or two before he got to the house, and that, after he left the place, he drank more and became intoxicated. According to defendant's testimony Newton's wife refused to give any information concerning the affairs, and was very disrespectful to him. The defendant started to get in his automobile to go but on seeing Newton coming he waited and went across to meet him. As the two walking together approached the house, according to the testimony of Mr. Griner, the son of Newton went into the house, got a gun, and came out with it, and that he (Griner) took the gun from Newton's son. Newton's son testified that Mr. Griner went in the house and got the gun. It appears that, as soon as the negro Newton got there, he went on the porch of the house, while the defendant stood on the ground nearby. According to the testimony of the defendant, at this point Newton seized a stick, and commenced striking the defendant with the stick from the porch, and, in order to protect himself from the blows of the stick, the defendant shot Newton with a pistol, which he drew from his pocket at the time the blows were being inflicted. The wife and son of Newton testified that the defendant was the one that picked up the stick and was using it; that he was striking at Edgar, the son of Newton, and on the second effort to strike Edgar an attachment on the stick flew off and struck Newton's baby, which was in the arms of Ella, the wife, who was also on the porch, and that Newton seized the stick in the hands of the defendant, and as he did so, the defendant shot him; that Newton did not strike, or attempt to strike, any one. It clearly appears from the testimony of both sides that, at the time the shot was fired, Newton was standing on the porch of the house in which he was living, and the defendant was standing on the ground near by the porch. When the defendant and the two young men with him, Griner and Thomas, drove away, they took with them the stick in question and the gun Griner claimed to have taken from the son of Newton.
In view of this state of facts, was it prejudicial error on the part of his Honor, the presiding Judge, in failing to affirmatively charge the jury as requested by Mr. Purdy, as follows: "Mr. Purdy: Asks the Court to charge the law that a party on his own premises does not have to retreat, but can stand his ground?"
It is a recognized principle of law that a party on his own premises does not have to retreat, and there is no question that the defendant had the right to go upon the place in question for the purpose he claimed he went there. The deceased was a laborer for the defendant, working on the farm in question as a sharecropper, and the defendant, as the owner of the farm, had the right to go upon the same whenever he saw fit. The fact that the deceased was cultivating this farm as a sharecropper for the defendant in no way deprived the defendant of his right of entry and his right to stand his ground thereon. But, as to the house in which the deceased was living, the law is different. This house was the home of the deceased and his family; it was his castle, his place of safety and, under our view, the defendant did not have the right to pursue the deceased into this house, or on the porch, which was a part of the house. Under our view, it might reasonably be inferred from the fact that the defendant was standing on the ground at the edge of the porch when he fired the fatal shot into the deceased standing on the porch, when considered in connection with the other facts testified to, that the defendant sought the deceased in his castle, and at the time the defendant was not in danger of receiving bodily injury. Whether or not the jury would draw this inference from the evidence is not for this Court to say, but such an inference could reasonably be drawn. Therefore the request to charge, without modification, was not applicable to the facts of the case, and the presiding Judge very properly did not charge the same.
However, while his Honor did not affirmatively charge defendant's request, the defendant indirectly received the benefit of such request, in that his Honor charged the jury that in order to establish the plea of self-defense, the defendant in this case was only required to establish three things, namely: (1) That he was without fault in bringing on the difficulty: (2) that, at the time the fatal shot was fired, he believed he was in imminent danger of losing his life or suffering serious bodily harm, and that it was necessary to act as he did to protect himself from losing his life or of suffering serious bodily harm; and (3) that a man of ordinary firmness, prudence, and courage would have reached the same conclusion, as he did. His Honor, as he stated to the jury, in this case, left out the fourth element; namely, that there was no apparent safe means of escape by retreating.
Under our view of the case, his Honor's charge was more favorable to the defendant than he was entitled to.
The exceptions are therefore overruled, and it is the judgment of this Court that the judgment of the lower Court be, and is hereby, affirmed.
MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES COTHRAN, BLEASE, and STABLER concur.