149 S.E. 108 | S.C. | 1929
July 22, 1929. The opinion of the Court was delivered by The defendant, William A. Faulkner, was charged with assault and battery with intent to kill one J.W. Moore, found guilty, and sentenced to six months' imprisonment.
In the year 1926, Moore was a share cropper for Faulkner, and lived on the latter's land about 400 yards from his residence. It appears that Faulkner's residence is between his horse lot and Moore's residence, and that two roads or paths lead from Moore's home to the lot, passing near Faulkner's residence, one on the north and the other on the south. On November 23, Moore took his cow to the lot, where he and his brother-in-law, Grover Harp, who came up to inquire about a vise, had some unfriendly conversation with the defendant, who testified that Harp drew his knife. Faulkner ordered them to leave, went to his house, got his gun, and, as he says, "came back at them on the porch." Moore left the lot with his cow, and started back to his home along the road on the south side of Faulkner's house. Faulkner testified that Moore "started like he was coming to the house," and that he shot his gun into a tree "to scare them off," though he did not at that time know where Harp was. Thereupon Moore, telling Harp to bring his gun, continued with his cow in the direction of his home. When he had gone about 38 yards from Faulkner's residence, Harp met him and gave him the gun, and, Faulkner having in the meantime gone back into his house and reloaded his gun and returned to the porch, they fired at each other — the testimony *381 being in conflict as to who fired the first shot — and Moore was badly wounded. In this statement we have omitted many details, deeming it necessary to refer to such facts and evidence only as are necessary to an understanding of the case and to a decision of the questions at issue.
The appeal assigns error to the trial Judge in failing to charge the jury "the law as to the rights of a person at his own home and on his own premises in the use of such force as is necessary to expel a person from such premises." The State contends that error cannot be predicated upon such failure to charge, for the reason that the appellant made no request for such instruction. We do not agree with this contention. No citation of authority, of course, is necessary to support the proposition that, where the trial Judge makes a correct general charge of the law applicable to the case as made by the evidence, a party desiring more detailed instructions must make request therefor. That principle, however, has no application in the case at bar. The "right to eject" is a distinct defense, and, if a charge as to the law governing this right was applicable to the case, the defendant was entitled to such charge, whether he requested it or not.
In State v. Du Rant,
In State v. Dodson,
We find, however, from an examination of the testimony, that the law as to the "right to eject" was not applicable in this case. The exceptions raising this question are evidently based on some confusion as to the "right to eject." The right to use such force, even to the taking of life, as is necessary to eject a trespasser, applies to the habitation, and perhaps to the cartilage, but not to other parts of the premises. As to the latter, the rights of the occupant are limited to immunity to the law of retreat, in case he slays or wounds the trespasser and enters the plea of self-defense. State v.Bradley,
The appellant also urges that the trial Judge committed error in questioning certain witnesses; the questions asked "being in the nature of a cross examination *383 on behalf of the State, having at least a tendency to prejudice the jury against the defendant." This objection is without merit. The record shows that the Court's examination could not possibly have had the effect complained of; it merely tended to develop the truth of the issue, and was in no way prejudicial to the defendant.
In State v. Anderson,
See, also, State v. Mitchum (S.C.),
The judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and CARTER concur.