40 S.C. 298 | S.C. | 1894
The opinion of the court was delivered by
“Agreed Case. The defendants, Jerry Hallback and Robert Scott, were indicted as principals, on a charge of murder, under the usual form of indictment, at the June term of the Coui’t of Sessions for Berkeley County. Upon the call of the case, the defendants demanded a full panel. The clerk reported only thirty-five jurors present. The judge declined to order a full panel, and directed the clerk to present the jurors. (Defendants excepted.) Before any juror was presented for challenge, defendants demanded that the panel be entirely called over in their presence, before they should be called upon to enter on their right of challenge.
“ ‘Affidavit. The State of South Carolina, County of Berkeley. Personally appeared before me, R. H. Sweeney, a trial justice of the said county and said State, R. B. Cuthbert, who, being duly sworn, says, that on the 4’th day of February, 1893, one Jerry Hallback did commit a trespass on the lands, what is known as the Porter tract, now underlease to the defendant (deponent), after notice, and prays that a warrant may be issued for him, he be arrested and dealt with according to law. (Signed) R. B. Cuthbert. Sworn to before me, this February 7, 1893. (Signed) R. H. Sweeney, trial justice.’
“ ‘The State of South Carolina, County of Berkeley. -, trial justice in and for the said county and State. To any lawful constable. Whereas complaint upon oath has been made by R. B. Cuthbert that on the Porter tract, in St. Andrews, in the county and State aforesaid, on the 4th day of February, 1893, one Jerry Hallback did commit a trespass after notice. These are, therefore, to command you to apprehend the said defendant, Jerry Hallback, and bring him before me, to be dealt with according to law. Given under my hand [and seal, this February 7th, 1893. (Signed) R. W. Sweeney, trial justice.’ Back cover endorsed as follows: T hereby appoint Robert Haisell as a special constable to execute the within process. (Signed) R. W. Sweeney, trial justice. February 7th, 1893.’ ”
A book of testimony was offered, copy of which is attached to the record. Counsel for the defendants made numerous requests to charge (sixteen in number), some of which were
I. That there being but thirty-five jurors present on the day of trial, and the prisoners having given notice of their demand for a full panel, that his honor erred in overruling such demand, and requiring defendants to exercise, against their protest, their right of challenge from such incomplete and insufficient panel.
II. That his honor erred in overruling and refusing the demand of the prisoners that the panel be entirely called over once in their hearing before entering upon their right of challenge.
III. That his honor erred in refusing to charge the jury, as requested : “That the warrant issued by Trial Justice Sweeney on February 4th, 1893, for the arrest of the prisoner on a charge alleged as follows: ‘That he, the said Jerry Hallback, did commit a trespass after notice, was illegal and of no legal force, ’ in that the offence charged was neither in the warrant or affidavit plainly and substantially set forth, and it was unlawful for any constable or private person especially appointed to execute the same.”
IY. That his honor erred in charging the jury that said warrant did substantially and plainly set forth the offence charged, and was a valid legal process, and that the prisoners had no right to resist the same.
Y. That his honor erred in refusing to charge the jury as follows: “That said warrant of arrest being illegal and of no legal force, it was unlawful for Haisell to attempt to execute the same, and it was lawful for the prisoners to resist any attempt at arrest thereunder; and further, it was lawful for the prisoner to forbid Haisell any entrance in his dwelling house.”
VII. That his honor erred in refusing to charge the jury, as requested by the prisoners, as follows : “If the prisoner had a right to resist arrest on account of the warrant being without legal force, or on account of the lack of authority in Haisell to enforce the same, and if, in order to avoid such illegal arrest, he took refuge in his dwelling house, then in such case, if the jury believe that the deceased and others with guns and pistols surrounded such dwelling to enforce -such illegal arrest, and thereupon Haisell attempted to enter said dwelling for such illegal purpose, and in such manner and threatening attitude as, in the opinion of the jury, reasonably entitled the prisoner to believe that his life was in danger, or that he was about to receive serious bodily harm, then in such case the prisoner was justified in killing Haisell and in driving away the other members of the attacking party, and the prisoner was not precluded from repelling such an attack by the fact that he had such prior notice of such intended attack, that he might have called upou the public authorities to intervene. When the said attack was actually made upon him, he was entitled to repel it, no matter how long he may have anticipated or prepared for it.”
VIII. That his honor erred in refusing to charge the jury, as requested by the prisoners, “That Haisell had no authority to execute the warrant, inasmuch as he was not appointed in the manner provided by law, in that the alleged appointment contains no authority to arrest the prisoner, and no particular occasion is therein specified in writing.”
IX. That his honor erred in admitting in the evidence the
X. That his honor erred in charging the jury as to the law in reference to the consequence of resisting an officer, there being no evidence that Haisell was an officer.
XI. That his honor erred in not granting the motion of the prisoners for a new trial upon the grounds hereinbefore mentioned.
XII. That his honor erred in not granting a new trial as to the defendant Scott, there being no evidence to support the verdict against him.
Exceptions 1 and 2. Under the authority of the State v. Stephens, 13 S. C., 287, the first exception was abandoned; and so was the twelfth, on the ground that it does not charge any error of law, and can not be reviewed by this court.
Now the charge made against the defendant, Hallback, and set forth in the affidavit on which the warrant issued, was, that on the day stated, he, Jerry Hallback, ‘ 'did commit a trespass on the lands what is known as the Porter tract, now under lease to the defendant (deponent), after notice,” &c.; and in the warrant the charge is set forth substantially in the same way, “that Jerry Hallback did commit a trespass after notice.” Now while it is true that the specific offence with which Hall-back was charged is not set forth in terms, yet, as we think, there can be no doubt or uncertainty whatever that the offence charged was that created by section 2507 of the General Statutes, which reads as follows : “Every entry on the enclosed or unenclosed land of another, after notice from the owner or tenant prohibiting the same, shall be deemed a misdemeanor.” It seems that the supposed “uncertainty” arises out of the use of the word trespass instead of entry, but it is clear that trespass is a more comprehensive term than “entry,” and, indeed, includes it; especially when we consider the words that follow, “after notice,” which do not occur at all in section 2501, which creates the offence of “trespass.”
Exceptions 5, 6, and 7 depend upon the alleged illegality of the warrant of arrest, now eliminated from the case by the charge of the judge, which, we have endeavored to show, was in conformity to law.
The judgment of this court is, that the judgment of the Circuit Court be affirmed, and the case remanded to the Circuit Court, for the purpose of enabling that court to assign a new day for the execution of the sentence heretofore pronounced.