70 S.E. 440 | S.C. | 1911
Lead Opinion
March 9, 1911. The opinion of the Court was delivered by The appeal herein is, from the sentence of death, imposed upon the defendant, John Crosby, for the alleged murder of Ed Acker.
The exceptions will be set out in the report of the case.
First Exception. Motions for continuance are addressed to the presiding Judge, and the refusal to grant such motion is not the object of appeal, unless there was an abuse of discretion, which has not been made to appear in this case. State v. Pope,
Second Exception. The jury had not then been empanelled, and we fail to see wherein the remarks of the presiding Judge, in refusing the motion for continuance, were in violation of article V, section 26, of the Constitution, prohibiting Judges from charging juries, in respect to matters of fact. Furthermore, the affidavit of A.M. Bailey, which was afterwards introduced in evidence, was prejudicial rather than favorable to the defendant.
Third Exception. After his Honor, the presiding Judge, excluded the testimony mentioned in the exception, the defendant was allowed to testify as to similar facts, without objection.
Fourth Exception. In the first place, we fail to see the relevancy of the testimony which the defendant's attorneys sought to elicit from the witness. And in the second place, the extent to which an attorney shall be permitted to cross-examine a witness, is limited by the presiding Judge, and his ruling in this respect is not appealable, unless there has been an abuse of discretion, which does not appear in this case. *106 Fifth Exception. This exception must be overruled, for the reason that the charge was a correct statement, in a general way, of the law of self-defense; and, if the defendant desired to avail himself of any special rights, arising out of the fact, that he was on his own premises, at the time of the homicide, he should have presented a request embodying a proposition, to that effect.
Sixth Exception. When the charge is considered as a whole, it will be seen that this exception cannot be sustained.
Seventh Exception. What has just been said disposes of this exception. Furthermore, the appellant has no cause to complain of the definition of malice, as the burden which rested upon the State, to prove malice, was made greater than the law requires.
Eighth Exception. In the first place, the exception is too general, but waiving such objection, it cannot be sustained when the entire charge is considered.
Ninth Exception. There was testimony to the effect that the defendant was drunk, and the presiding Judge charged as to the effect of drunkenness, in its different stages. Calling one stage "crazy drunk" does not entitle the defendant to a new trial.
Tenth Exception. When the charge is considered in its entirety, this exception cannot be sustained.
Eleventh Exception. This exception cannot be sustained, for the reason that, whether his Honor, the presiding Judge, was in error or not, in charging that a man's being "crazy drunk" would be no excuse for crime, defendant's own evidence showed clearly that he was not "crazy drunk," in the sense that he did not know what he was doing, as he gave, while on the stand, a full and detailed account, of what took place, at the time of the homicide.
Twelfth Exception. What has already been said disposes of this exception. *107
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed, and that the case be remanded to that Court, for the purpose of having another day assigned, for the execution of the sentence.
Dissenting Opinion
The first and second exceptions, considered together, are not entirely without merit. The defendant had done all the law required him to do to secure the attendance of the witness, Bailey. He had him put under recognizance to appear and testify. Upon his failure to appear, the defendant's attorneys presented an affidavit, in support of their motion for continuance, which fully complied with rule 27 of the Court. Even then, it was within the discretion of the Court, considering the materiality of the testimony of the absent witness, as it appeared from the affidavit, to order the case to trial with or without requiring the solicitor to admit, as the condition of refusing the continuance, that the absent witness would testify, if present, as stated in the affidavit. But, in refusing the motion for continuance, the presiding Judge said: "If Mr. Bailey, a white man, knows anything about this case, it being a murder case, he should have been here. Where a witness, white man, with any intelligence, who claims to be an important witness in a murder case, would go off without leave of the Court, unless he had some good excuse, so far as the Court is concerned, it is very doubtful whether the Court would put much faith in what he had to say about the case. The Court rules that the case goes on to trial." The Court ordered a bench warrant to be issued for the arrest of the absent witness, and though he was not arrested in time to testify at the trial, his testimony as it appeared in the affidavit of defendant's attorneys, was admitted and allowed to go to the jury — whether as a condition of ordering the case to trial or not does not appear. But, in either case, his testimony had already been discredited by the remarks of the *108 presiding Judge in the presence of the jurors. It did not appear why the witness was absent. He may have had a good and sufficient excuse. The remarks of the presiding Judge, discrediting his testimony, were uncalled for and not warranted by the mere circumstance of his absence, and they may have prejudicially influenced the consideration of his testimony by the jury.
The testimony shows that the fatal encounter occurred at the defendant's home. He was, according to his testimony, at the time of firing the fatal shot, on his own piazza, within a few feet of the door of his dwelling house. According to the testimony of the State's witnesses, he was in his yard. In either view of the testimony, he was within the curtilage of his dwelling house. According to the testimony of the State's witnesses, the defendant killed deceased without provocation. According to his testimony deceased was making an unprovoked attack upon him. We do not know whether the jury believed the testimony of the State's witnesses or that of the defendant. They may have believed that of the defendant. But, even if they did, under the charge, they may nevertheless have convicted the defendant of murder, because they believed that he could have avoided the necessity of killing the deceased by retreating into his house. But if the defendant's testimony be true, he was not bound to retreat. In this view of the evidence, the charge was erroneous and prejudicial. State v. Brooks,
There was also prejudicial error in the definition of malice. The only difference between murder and manslaughter lies in the presence or absence of malice in the heart of the slayer. If the killing was done with malice, it was murder. If it was done unlawfully, but without malice, it was only manslaughter. It was, therefore, of the utmost importance that the jury should have been correctly informed what malice in law is. Otherwise, they could have had no adequate conception of the difference between murder and manslaughter. It seems clear to me that the definitions of malice given in the charge, which is correctly quoted in the sixth and seventh exceptions, were erroneous and misleading in the particulars pointed out in these exceptions. In State v. Rochester,
