The opinion of the Court was delivered by
The defendant, Oscar Brooks, charged with the murder of Harrison Alford, in Marlboro County, March 4, 1906, was found guilty, with recommendation to mercy, and received sentence of life imprisonment.
The difficulty had its. origin in a controversy as to the custody of Etta Brooks. This girl, who was about nine years old, was the daughter of the defendant by his first wife, Molly Alford. Defendant moved to Georgia and his wife died there. About two years later, when Etta was about three years old, she was taken charge of by Helen Alford, her grandmother, and reared as one of her family. The deceased was a son of Helen Alford and lived with her. In January, 1904, defendant rеturned to Marlboro County and later married a daughter of Helen Alford, a half-sister of his first wife, and for some time lived in her home. While living at this pilace, defendant expressed an intention to take Etta with him when hе moved, and testimony was admitted, over objection by defendant’s counsel, to show that there was an altercation between defendant and Helen Alford about it, during which defendant struck Helen Alford, and thаt some days later the subject came up again and defendant cursed the oldest daughter of Helen Alford, whereupon the deceased, who was present, jerked defendant down and got on tоp of him and was -pulled off by spme member of the family. The defendant then threatened to kill Harrison.
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State witness, Evander McDowell, testified: “Harrison continued on around and got something near*the doorstep and Mr. Brooks. * * * Harrison was venturing on toward Mr. Brooks and Mr. Brooks said, ‘Stand off; if you do not I will hurt you.’ ” That the parties cursеd each other and about that time Brooks struck Alford with the ax. Defendant testified that he was going towards his door intending to get in the house first, that deceased came on him cutting at him with a knife when he struck with the ax to save his own life. No other witness testified to seeing any knife in deceased’s hand at the time of the fatal blow. There was testimony that deceased put his knife in his pocket before entering the yаrd and that his knife was found closed in his pocket after his death, about two days later. There was also testimony that Evander McDowell and Henry Sports, State witnesses, who testified that they saw no knife in decеased’s hands, declared before the trial that deceased was cutting at defendant with a knife when defendant struck him with the ax. All the witnesses agree that the fatal blow was struck within the yard of defendant’s dwelling and within ,a few feet of his doorsteps, at night, after warning not to enter the yard and not to come on defendant. The deceased was younger, heavier and stouter than defendant.
The defendant sought tо excuse the homicide on the ground of self-defense and defense of his dwelling.
Judge Gage charged all the requests presented by defendant’s counsel on the law of self-defense except thе following *148 request, the refusal of which is- the ground of appellant’s main contention: “3. When a trespasser enters upon the premises or land of a party, it is his duty to gently ¡lay his hands upon him and bid him leave, and if hе refuses he is justified in using sufficient force to ¡expel him. But the dwelling-house of a man, where he lives, is his home, or castle, and he may repel force by force in the defense of his person, habitation оr property, against one who manifestly intends and endeavors by violence to commit a felony or either; and in such case he is not bound to retreat, but may pursue his adversary until he has secured himsеlf from all danger, and, if he kills his adversary, it is excusable homicide.”
In response to this request the Court said: “Now you have heard, in the argument of counsel and in the requests to charge, another defense, сalled the defense of the castle. That law is this.: It is a law which requires a man to defend his own home — or, more accurately, his own dwelling-house. If a man is in his dwelling-house, and another man offers to bréale into- it by force, the man in the house has the right to keep him. out, even to the extent of killing him. But that belongs to the man’s dwelling-house; it does not belong to his yard; and, under the testimony of the case here, that doctrine has no application. And even' in a man’s house, if a person enters, if he enters without violence, and is in, it Was decided one hundred years ago-, in this State, that the occupant of the house сould use only such force as was necessary to put him out; and his unlawful presence without violence would not justify an occupant of the house in killing him to get him. out. He can kill him. to keep him from coming in there. If lie is in peaceably, he can use only such force as is necessary to put him out. As I have told you, the doctrine of the castle has no application in this case because it is nоt claimed that the killing was done in the dwelling-house.”
We think it was harmful error to refuse the instruction. The ¡Court, neither in response to this request nor in any *149 other portion of his charge, instructed the jury as to the right of defendant to defend himself without retreating against a violent assault of a trespasser within his dwellingi-house yard, but on the contrary the case was submitted to the jury under the rules ordinarily governing the law of self-defense, including the duty of defendant to retreat, if there be a probable means of escape.
For the purpose of this question, only, we must assume as a possible theory of the case that the deceased was struck while assaulting defendant with a knife, for -such was the testimony of defendant.
In the case of Beard v. United States, 15 Sup. Ct. Rep., 962, after a review of numerous authorities, the Court held that a person on his premises outside his home, in his оrchard lot fifty or sixty yards from his dwelling, if assaulted by another with a deadly weapon, is not bound to retreat but may stand his ground and meet such attack even to the killing of his assailant, if in other respects he brings himself within the ordinary rules of self-defense. The Court quotes, among other authorities, from Fast Pleas of the Crown, 271; Foster’s Crown Cases, 273; 2 Wharton Cr. Law, par. 1019, language substantially the same as the second sentence of thе request which was refused.
In
State
v. Bodie, 33 S .C., 124;
The case of
State
v.
Rochester,
72 S. C., 199,
*150 If one on his own premises, not a part of his habitation precincts, is not bound to retreat before the violent assault of a trespasser, for a greater reason, one within the curtilage of 'his home is not bound to retreat.
There is much reason and authority for holding that one within the curtilage of his dwelling is in fact and law within his dwelling.
Lee v. State,
We dо not regard it important to consider at length any of the remaining exceptions to the charge as to self-defense and manslaughter. Considering the charge as a whole, the law declared аs to manslaughter and as to self-defense, except in the particular above discussed, was free from error.
Ror the error indicated, the judgment of the Circuit Court is reversed and the case remanded for a new trial.