State v. Rish
88 S.E. 531
S.C.
1916
Check Treatment

The opinion of the Court was delivered by

Mr. Justice Hydrick.

Defendant was convicted of murder with recommendation to mercy, and sentenced to life imprisonment. The evidence warranted the finding of either of the several verdicts suggested by the Court in the charge, which will be reported.

*258 1, 2 *257 There was no error in excluding the alleged declaration of deceased, made after he was shot. The record shows that the trial Judge was under the impression that it was offered *258 as a part of the res gestae, and that his ruling was based upon that supposition. Appellant admits that it was not admissible on that ground, but contends •that it should have been admitted as a dying declaration. It was not suggested to the trial Court that it should be admitted on that ground, and appellant will not be allowed to •shift his position in that way. Points not raised on Circuit cannot be relied upon here. Besides, no foundation was laid for the admission of the alleged statement as a dying declaration. It was not made to appear that deceased was aware of the fact that he was mortally wounded, or that he was without hope of’recovery, or that the declaration related to the cause or circumstances of the death. State v. McCoomer, 79 S. C. 63, 60 S. E. 237.

The Court erred in charging:

3 “Provocation, you must understand, is inconsistent with self-defense; provocation looks towards manslaughter; that provocation must be sufficient to reduce the killing from murder to manslaughter.”

It is true that, in homicide cases, provocation, as such, ordinarily looks to manslaughter; that is, its effect is merely to reduce the killing from murder to manslaughter, for that which in law is only provocation cannot justify or excuse a homicide. Therefore mere provocation is not an element of self-defense; and where nothing more than that which in law is mere provocation is shown, the Court is not bound to charge the law of self-defense. State v. Byrd, 52 S. C. 480, 30 S. E. 482. It is not true, however, that provocation is inconsistent with self-defense. They may coexist. Indeed, in some cases, the conduct of deceased is so near the border line that it is difficult to determine whether it amounted only to provocation or gave rise to the right of self-defense. In such cases, it is the province of the jury to say whether the killing was done under the provocation or in the exercise of the right of self-defense. In State v. Way, 38 S. C. 333, 17 S. E. 39, the Court approved the following instruction:

*259 “No provocation will excuse one of the crime of murder, where the weapon used indicates an intention to take life, unless such provocation is accompanied with unlawful violence or an apparent intention to do great bodily harm.”

The Court impliedly recognized the possible coexistence of provocation with the right of self-defense.

The next assignment of error is in charging that:

4 “Where a man admits the taking of human life, the law places upon him the burden of showing that it was done in self-defense.”

Appellant contends that this instruction excluded all other possible grounds of excuse or justification. The answer is that no other excuse or justification was set up by defendant or suggested by the evidence. Defendant admitted the killing and claimed that it was done in self-defense. A trial Judge should confine his instructions to the law applicable to the case as made by the pleadings and evidence, and should, as a general rule, refrain from general observations that are irrelevant, because they tend to distract the minds of the jury from the real issues. There was no error, therefore, in the failure of the Court to refer to the various instances in which homicide may be excused or justified otherwise than in self-defense.

5 The instruction was erroneous, however, in that it excluded defendant’s right to have the jury consider and decide whether he had proved sufficient legal provocation, as that had been defined by the Court, to reduce the killing from murder to manslaughter. As we have shown, defendant had the right to rely upon his plea of self-defense, and, failing to establish that defense, he had the right to rely upon provocation to reduce the killing from murder to manslaughter. The error in the charge that provocation and self-defense are inconsistent might possibly have been considered harmless, in view of the fact that the verdict negatived the idea of the existence of provocation; but, when considered in connection with the instruction here *260 complained of,, the jury may have been misled, and may have understood the Court to mean that, having admitted the killing, defendant was guilty of murder, if he failed to prove that he killed deceased in self-defense.

6 Appellant next complains of a departure in the charge from the most usual phraseology of the decisions and text-writers in declaring the law of self-defense, as, for instance, that “a man ordinarily constituted would have been warranted in believing,” etc. There was nothing in this that misled the jury. ■ They must have understood from the connection in which the expression “a man ordinarily constituted” was used that the Court meant the man of ordinary reason, courage, and discretion. And there is nothing in the objection that the word “warranted” was used. While the word “justified” is most commonly used in that connection by Judges and text-writers, yet we find “warranted” frequently used by them in the same sense, and the lexicographers define them as practically synonymous.

There was no error 'in charging the law of retreat. Defendant was not on his own premises; and, under the circumstances, it was his duty to avoid the taking of life, if he could have done so with reasonable safety to himself.

Judgment reversed.

Footnote. — As to necessity that there should be expectation of immediate death to render dying declarations admissible, see notes in 17 A. & E. Ann. Cas. 287, 56 L. R. A. 853 to 450, 30 L. R. A. (N. S.) 391-399.