85 S.E. 239 | S.C. | 1915
Lead Opinion
May 5, 1915. The opinion of the Court was delivered by The defendant was indicted for murder and convicted of manslaughter at the March term of the Court, 1914, for Marlboro county, and sentenced by his Honor, Judge Memminger, at hard labor for the period of three years, a motion for a new trial having been overruled. Defendant appeals and alleges error on the part of the Judge in not charging *119 the jury as to the law of self-defense, as embodied in defendant's request to charge, and in refusing to charge defendant's request to charge as to accidental killing. Defendant complains of further error in Judge's charge as to the law of mutual combat.
We have read the Judge's charge as a whole and find that he covered every phase of the law of the case fully. In his own language he told the jury what was murder, manslaughter, and self-defense. His charge was fair and impartial, and the jury could not have misunderstood it, and it was in nowise prejudicial to the defendant. He fully told them, in his own language, what the law of self-defense was. A Judge is not bound to charge in the exact language of a request made; it is sufficient if he does so substantially in his own language. Even though the request embodies a sound proposition of law applicable to the case as to the defendant request as to the law of accidental killing, there were no facts disclosed in evidence to warrant an inference that it was accidental. The defendant and deceased got into an altercation and then in a fight, which resulted in the death of the deceased from a blow inflicted by the defendant. The defendant testified in his own behalf as to how the difficulty began, and as to how the fight commenced, claiming that the deceased was the aggressor from the beginning and assaulted him, the defendant. "That he grabbed me in the back and struck me in the back and I grabbed around the post to hold away from him, and got into the house and got rid of him, and he jerked me back, and I had the post, and that post pulled out, and me and him both fell, and I fell backwards and the post was on top of me. And when me and him got off of the ground he was pulling something out of his pocket. I did not know what was it, and I said: `Josh, don't you shoot me;' and he said, `You son of a bitch, I will get you tonight,' and I saw something coming out of his pocket, and I took the post *120 and I jooged him that way. I did not intend to hurt him badly, but I jooged to get rid of him. If I could have jooged him enough so I could have run, I would have. I knew he was a good man. He was the best man; always was." This does not show an accidental killing. The defendant voluntarily and knowingly intended to hurt the person of the deceased, even though if he did not intend to kill him, yet if death ensued, and he unlawfully struck, he is guilty of murder or manslaughter, according to the circumstances of the nature of the instrument used and the manner of using it as calculated to produce death or great bodily harm or not. If the facts and circumstances show either that it was done with mischievous intent, or that it is a dangerous act and will result in serious harm, or there is a strong probability that it will, it cannot be an accidental killing. The textbooks show this to be law and quotation of authority is unnecessary. In light of all the facts and circumstances and surroundings developed in the case there was no evidence from which the jury could infer that the killing was an accident. It was either felonious or excusable on the ground of self-defense. His Honor was correct in telling the jury that "where a man engaged in the commission of an unlawful act kills another the law calls that manslaughter, even though he may not have intended to kill another."
We fail to see that there is any error in the trial in the Circuit Court as made by the exceptions, and all exceptions are overruled and judgment affirmed.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES FRASER and GAGE concur in the opinion of the Court.
Dissenting Opinion
I think the evidence warranted an inference that the killing was unintentional and accidental; and, therefore, the trial Judge erred in refusing to instruct the jury, as requested. *121 "that the plea of accidental killing is not an affirmative defense, and, therefore, does not impose any burden of proof upon the defendant; and when such plea is made the State cannot ask for a conviction, unless it proves that the killing was done with criminal intent." The refusal of the requested instruction, followed by the charge as to some phases of accidental killing, was clearly prejudicial. Upon that phase of the case the Court did instruct the jury as follows: "As where a man engaged in the commission of an unlawful act kills another, the law calls that manslaughter, even although he may not have intended to kill another. That is what is known as involuntary manslaughter. So the law says where two men agree to go and have a fight — that is, to violate the law, to do an unlawful act, and as a result of that fight one of them kills the other, even although he did not intend to kill him, in the fight strikes a blow he did not intend to be a death blow, but nevertheless became a death blow, and was a blow resulting from the commission of an unlawful act, then the law makes that a case of manslaughter, an unlawful killing of a human being, but done without malice, expressed or implied." From the foregoing instruction, following the refusal of that prayer for, the jury may have inferred that the burden of proof as to the plea of accidental killing was upon defendant, as they were told it was as to the plea of self-defense.
If there was any evidence which warranted a reasonable inference that the killing was unintentional and accidental, the refusal of the requested instruction was error. State
v. Morgan,
The undisputed evidence showed that defendant and deceased were brothers; that, on the day of the fatal encounter, deceased and his father went together in a buggy to the house of Lizzie Little, where defendant was, to see *122 him on business; that when they got there, defendant was eating supper, and, being invited, deceased ate with him; that they were perfectly friendly and chatted in a friendly way during the meal and afterwards, until deceased took offense and became greatly and unreasonably enraged at a most trivial remark made by defendant; that deceased was drinking, and, when in liquor, he was quick to take offense, quarrelsome and dangerous; that he was the older, stronger and better man of the two; that he threatened to whip defendant, and attempted to do so with a buggy whip, but was prevented by his father. The evidence warranted the inference that deceased was the aggressor throughout, and persisted, against the entreaties of his father, in trying to bring on an encounter which defendant tried to avoid; that, in trying to avoid the difficulty, defendant left deceased and his father at their buggy, to which they had gone preparatory to leaving, and was going back to the house when deceased followed him and overtook him near the porch, and caught hold of him from behind; that defendant caught hold of the porch post — said to have been a scantling — to keep deceased from pulling him down, and the post gave way and both fell backwards; that, when they got up, deceased drew something out of his hip pocket, which defendant thought was a pistol, it being nearly dark, but it turned out to be a pair of wire cutters; that defendant said to deceased: "Don't shoot me," and deceased replied: "You son of a bitch, I will get you tonight." Defendant testified: "I saw something coming out of his pocket, and I took the post, and I jooged him that way. I did not intend to hurt him badly, but I jooged him to get rid of him. If I could have jooged him enough so I could have run, I would have." The evidence was that the blow did not break the skin on deceased's head, and that he lived sometime after the blow, and talked to his father on their way home, but it is not stated how long he lived. The father testified that after the difficulty defendant said to deceased: "If you had *123 not went to shoot me, I would not have knocked you." It should be said that it is also inferable from the evidence that defendant was at the porch and went to meet deceased as he approached him, and so voluntarily entered into the combat.
I think the testimony clearly warranted the inference that the fatal effect of the blow was unintentional and accidental, in the legal sense of the word. Whether that was the correct inference was, of course, a question for the jury. No doubt the correct rule is that even in self-defense, the means of force employed must not be unreasonably disproportioned to the attack. A slight blow will not justify an enormous battery. But the nature of the weapon used and the kind of blow given with it must be considered in the light of the circumstances of the defendant at the time. He may not have time or opportunity to deliberate upon and select the means of defense, or to make nice calculation to gauge the proper quantum of force necessary to repel the assault. Even when we have time for mature deliberation, our actions often result differently from what we intend. Numerous cases are found in the books where a slight blow, or moderate chastisement, resulted in death. Such cases are held to be accidental, when there was no intent to kill, and the instrument employed and the chastisement inflicted not unreasonable under the circumstances. But for the proof that deceased drew the wire cutter out of his hip pocket, which defendant took to be a pistol, it might well be said that the blow struck with the post was unreasonably disproportioned to the assault made upon him. But not so, if he honestly and reasonably believed that he was in imminent danger of being shot, or even struck with the pliers — especially if, as he swore, his intention was not to kill, but merely to stop the assault. While it is true that the use of a deadly weapon raises a presumption of malice, yet it is only a presumption of fact which may be rebutted. In each of the cases above cited from our own decisions, where *124 the killing was claimed to be accidental, and it was held that the issue either had been or should have been submitted to the jury, under proper instruction, a deadly weapon was used — either a pistol or gun. The fact that a deadly weapon was used, therefore, does not necessarily deprive a defendant of the right to have that issue passed upon by the jury. Of course, if there is no evidence which would warrant a finding of accidental killing, the issue should not be submitted. But here the defendant swore that he did not intend to kill his brother, or even to hurt him badly, but intended to strike him hard enough to stop the assault upon himself. The trial Judge must have thought the evidence warranted a finding of accidental killing of some sort, for, otherwise, he would not have given the instruction upon that subject above quoted, which applies only to such killings in pursuance of an unlawful enterprise, or in mutual combat, which the law does not excuse. While there was evidence which warranted the finding that the combat was mutual, that was not the only view of it, for it equally, if not more than equally, warranted the finding that defendant did everything that he could in reason to avoid the difficulty, and struck only after he had been attacked without any provocation.
*125Therefore, I think a new trial should be granted.
