51 S.E. 542 | S.C. | 1905
July 5, 1905. The opinion of the Court was delivered by The defendants were convicted of the murder of William J. Cox, and sentenced to be executed on July 1, 1904.
By their appeal they first submit the Circuit Judge erred in rejecting the jurors, L.W. Watson and Guy L. Watson. The former having married the second cousin of deceased, was related to him within the sixth degree by affinity, and was properly rejected. State v. Brock,
The State offered evidence tending to prove these facts: William J. Cox, the deceased, was a magistrate. The defendants on the day of the homicide drove by his store in a buggy. B.M. Austin, at one time a dispensary constable, was at the store, and seeing there was some article in the buggy covered with oil cloth, reached the conclusion it was contraband liquor. Thereupon he and Cox followed the defendants, and after passing them in the road turned back, intending to arrest them. They then discovered that the defendants had gotten out of the buggy and were standing behind it, each with a pistol in his hand. Austin drew his gun and ordered the defendants to throw up their hands. They complied with the demand, but Palmer Chriswell retreated about thirty yards and then fired on Austin, who was following him. Austin, the only eye-witness examined, testified while he was thus engaged with Chriswell he heard firing from the direction of the point where Cox had approached Fletcher Byrd, the other defendant, and there Cox was found shot to death. At the time of the attempted arrest, the defendants were not told that Cox was an officer, but the defendant, Fletcher Byrd, subsequently stated to the witnesses, Hughes and Gertrude Gillion, that the shooting was with "spies," or dispensary constables; the evidence tended to show further that the defendants lived just across the Greenville line, in Laurens County, and were not unfamiliar with the country and its inhabitants. The defendants offered no testimony.
It is necessary to quote the first exception to the charge in full. It is that the Circuit Court erred "in not charging the jury that if they believe from the evidence that the deceased, William J. Cox, and D.M. Austin drove by the defendants and across the road in front of them, drew a gun on them, ordered them to halt and surrender, had no warrant for their arrest and never told the defendants they were officers of the law, the defendants would have *107
the right to resist arrest and that they would have the right to kill the assailants, or either of them, if necessary, to save themselves from serious bodily harm or death." It might be sufficient to say that the Circuit Judge stated to the jury fully his views as to the limitations of the right of an officer to arrest without warrant, and was not requested to charge defendant's view of the law as stated in this exception. But the exception could not in any view be sustained, because, if the deceased had the right to make the arrest, the defendants could not justify resistance on the ground that he did not give them express notice at the time that he was an officer, if that fact was already known to them (State v.Williams,
The Circuit Judge charged: "Magistrates may arrest persons whom they see, or who come in their view, of violating *109
the law. They may arrest them or order them arrested without a warrant, but a warrant must be gotten as soon as possible. A magistrate may arrest a person who is violating the law within his view. * * * If you find that the defendants were hauling contraband liquor, that was a violation of the law and a magistrate would have the right to arrest them without a warrant, if it came within his view." As to this instruction, the defendants take the position that a magistrate may arrest without warrant only for a felony or breach of the peace committed in his presence, and, therefore, he could not legally arrest one who was hauling contraband liquor in his view, that being only a misdemeanor. Section 26 of the Criminal Code authorizes and requires a magistrate without warrant to "arrest and commit, if necessary, any person who, in his view, shall perpetrate any crime or misdemeanor whatsoever." State v.Williams, supra. Section 590 of the Criminal Code provides: "Any person detected openly or in the act of violating any of the provisions of this chapter shall be liable to arrest without warrant: Provided, A warrant shall be procured within a reasonable time thereafter." The chapter in which this section is found relates to the liquor laws of the State. There was evidence tending to show that the defendants killed the magistrate who was attempting to arrest them while they were perpetrating in his view the crime of transporting contraband liquor from one place to another within this State. (See State v. Moody,
Under section 16, of article I., of the State Constitution, which protects the citizen from unreasonable seizure of his person and property, there is no doubt a limit to the power of the General Assembly to authorize arrest of the citizen without warrant, but we do not think that limit has been reached when an officer is required to arrest without warrant one whom he discovers in the act of violating the criminal law. A full discussion of the authorities on this subject will be found in Burroughs v. Eastman, 24 L.R.A., 859 (Mich.). Jones v. Root, 6 Gray, 435 (Mass.), holds constitutional *110
a statute relating to the arrest without warrant of persons transporting contraband liquor almost exactly the same as section 590 above quoted. "At common law, as a general rule, an arrest could not be made without warrant for an offense less than felony, except for a breach of the peace." 3 Cyc., 880; State v. Sims,
The Circuit Judge charged: "The use of a deadly weapon presumes malice, but the presumption may be rebutted; so, after all, it is left for the jury to say, from all the facts and circumstances, whether the killing was done with malice or not." This was in exact accordance with the law as laid down in State v. Levelle,
The defendants next complain of this sentence in the charge: "Malice is the intentional killing of a person, knowing it to be wrong, intending to do it, knowing it to be wrong, without just legal excuse." This is substantially the same language used by the Circuit Judge in State
v. McDaniel,
Exception is taken to the opening of the charge on the subject of self-defense for lack of consistency and clearness. The burden was on the defendants to prove all the elements of self-defense. These were clearly laid down in the charge; the error of saying that the defendants were not obliged to show the existence of one of these elements was favorable to the defendants, and they cannot complain that it was immediately corrected.
On the question as to whether the liquor the defendants had was contraband the Circuit Judge charged: "If you find that the defendants were hauling contraband liquor, that was a violation of the law; that would be a violation of the law, and the magistrate would have the right to arrest them without a warrant if it came within his view, and if he was satisfied of his own knowledge that they were violating the law he would have the right to arrest them, and would have the right to call in anybody to assist him." There was no request to charge the converse of this proposition, and emphasize the rights of the defendants by an instruction to the effect that the defendants were not subject to arrest for transporting liquor not contraband. The exception which alleges error in this respect, therefore, cannot be sustained.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed, and that the case be remanded to that Court for the purpose of having a new day assigned for the execution of the sentence heretofore imposed. *112