State v. Summers, 15 S.E. 369

The opinion of the court was- delivered by

Mr. Justice Witherspoon.

The defendant, appellant, was indicted for the murder of John A. Reeder, and was convicted of manslaughter at the July term, 1890, of the Court of General Sessions for Newberry- County. The defendant relied for his defence upon the plea of self-defence. He appeals upon exceptions to the rulings as well as to the charge of the presiding judge.

1 The first exception imputes error to the Circuit Judge in ruling that C. H. Cannon was not disqualified as a juror, although when examined on his voir dire, he stated that he had expressed an opinion about the case. In answer to questions, the juror stated that he knew nothing &s to the facts of the case, that he was not conscious of bias or prejudice, and that he believed that he could render a verdict according to the evidence, as applied to the law to be announced by the court. The competency of jurors is left very much to the discretion of the presiding judge, and we do not think there was error in holding the juror to be competent.

2 The second exception imputes error to the Circuit Judge in allowing James F. Rutherford, a witness for the prosecution, to testify that he had a conversation with James K. P. Gog-gans with reference to the shooting, shortly after the shooting. This witness was not permitted to state the conversation had with Goggans, or any portion of it, and the testimony of the witness to the mere fact of having had the con ver-*485sation was irrelevant, and affords the defendant no ground for relief.

3 The third exception imputes error to the presiding judge in ruling that it was incompetent for Ivy W. Fant, a witness for the defence, who was present when the homicide’occurred, to testify in answer to the following question: “Would a reasonable man placed as Mr. Summers was, confronted with a man acting and doing and talking as Mr. Reeder was, would he have had cause to consider his life in danger?” The defendant was a clerk in the bar room of the witness, Ivy W. Fant, at New-berry, when defendant shot the deceased in the presence of Ivy “W. Fant. When the question was propounded, Ivy W. Fant, as a witness for the defence, had testified fully as to the language used, as well as to the gestures and attitude of the deceased and the defendant, at the time of the shooting, and had explained to the jury, on a diagram, the premises where the shooting occurred and the position of the parties at the time of the shooting. The answer to the question could only elicit the opinion of the witness, based upon the facts he had presented to the jury. It is urged that the answer to the question is competent under the exceptions to the general rule of evidence, as recognized by this court in the case of Jones v. Fuller, 19 S. C., 70. As the witness, Ivy W. Fant, is not an expert, he would only be allowed to express his opinion under the exceptions to the- general rule as-recognized in Jones v. Fuller, supra, when the facts are not capable of reproduction in such a way as to bring before the minds of the jury the condition of things upon which the witness bases his opinion. *

The exceptions to the general rule, excluding the opinions of non-expert witnesses, are predicated upon the necessity for admitting such evidence. Jones v. Fuller, supra, was an action for damages for the breach of promise to marry, and witnesses were permitted to express their opinions as to the amount of damages sustained by the plaintiff, upon the ground that the elements entering into the estimate of damages, upon which the witnesses based their opinions, were of that delicate and peculiar character that they could not be reproduced before the jury in such way as to show the jury the condition of things upon which the opinions *486were based. No such necessity can be urged to render competent an answer to the question propounded to the witness, Ivy W. Fant. The case under consideration does not come within the exceptions as recognized in the case of Jones v. Fuller, supra, and we do not think that the presiding judge erred in holding as incompetent the answer to the question propounded to the witness, Ivy W. Fant.

4 The fourth and sixth exceptions, imputing error to the presiding judge in charging upon the facts, cannot be sustained.

5 We do not think that the presiding judge erred, as alleged in the fifth, seventh, ninth, tenth, twelfth, thirteenth, and fourteenth exceptions, in his charge or refusal to charge the jury as requested. These exceptions, with the exception of the fifth, are not referred to in the argument of appellant’s counsel, and it is not necessary to consider each of said exceptions separately.

6 The eighth and eleventh exceptions impute error to the presiding judge in charging the jury as follows: “It is the duty of the State to make out, in the-first instance, a case of murder or manslaughter beyond a reasonable doubt. Then it is the business of the defendant to prove his defence of self-defence by such a preponderance of the testimony as will enable you to say, beyond a reasonable doubt, that the defendant is guilty, when you take the whole of the testimony into consideration. * * * But, I repeat it to you, if the State makes out its Cjase beyond a reasonable doubt, then the defendant must prove self-defence by such a preponderance of the testimony as that the jury shall come to the conclusion beyond a reasonable doubt, upon a view of the whole testimony, that the defendant is guilty.”

Self-defence, as an affirmative plea, must be established by the defendant by a preponderance of the testimony, relating to such plea, and the State must establish the defendant’s guilt beyond a reasonable doubt, arising from the consideration of the whole of the testimony. Whenever a defendant establishes the plea of self-defence by what is known as the preponderance of evidence, such a reasonable doubt is created as to the defendant’s guilt as *487will entitle the defendant to a verdict of acquittal. At the close of the testimony offered by the State, a defendant’s guilt may be proved beyond a reasonable doubt, yet if the defendant after-wards establishes his plea of self-defence by a preponderance of testimony, it will create such a reasonable doubt as to the defendant’s guilt as will entitle the defendant to a verdict of acquittal. The charge of the presiding judge, above quoted and as found reported in the record, is not only ambiguous, but was calculated to impress the jury with the belief that it was necessary for the defendant to establish his plea of self-defence by more than the ;preponderance of the evidence. Upon this ground we think that the defendant is entitled to a new trial.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.

Case Details

Case Name: State v. Summers

Court Name: Supreme Court of South Carolina

Date Published: May 20, 1892

Citations: 15 S.E. 369; 36 S.C. 479; 1892 S.C. LEXIS 89

Court Abbreviation: S.C.