State v. Thomas
88 S.E. 20
S.C.
1916
Check Treatment

After reciting the foregoing statement of facts, the opinion of the Court was delivered by

Mr. Justice Fraser.

The appellant’s first question is:

1 “The first three exceptions raised the point that the indictment in the case, having charged the defendant with carrying concealed weapons, it was the duty of the • Court to have charged the jury to find a special verdict on said count and it was the duty оf the jury to *319 find such special verdict, and that the Judge was without power to render judgment оn the verdict, unless it conformed with sections 159 and 160 of the Criminal Code of this State:”

This question is settled by The State v. Hasty, 76 S. C. 114, 56 S. E. 669.

“If the Solicitor had the right in that case, to enter a' nol. pros, as to thе count for carrying concealed weapons, when he was satisfied that it- was not sustained by the testimony, he had a right, in the case under consideration, to omit the count for carrying concealed weapons, upon ‍​​​​‌‌‌​​​​‌​‌​​​‌​‌‌​‌‌‌​‌​‌​​‌​‌​​​​‌​‌‌​‌‌​‌‌‍being satisfied, in the first instance, that it would not be sustained by the testimony, especially when it might well have been contended that the accused was on his own premises, at the time of the homicide.”

In this case there was an appropriate allegation and no nol. pros.

The defеndant was on his own land. The verdict acquitted the appellant of the charge of carrying concealed weapons, and he cannot complain if the judgmеnt was more favorable to him than the law required.

2 The next question is, was it error to exclude the testimony of defendant’s witness as to the shooting soon after it occurred.

Appellant stated “our object here was to show the state of mind that Fields (the deceased) was in when he went to look for Thomas with a double-barreled shotgun.” The cаse does not show that this ground was stated in the trial Court. The statement of the Judge shows clearly that he understood the evidence to be offered as a part of the res gestae, and excluded it on that ground.

Stаtements of deceased, made before a homicide, containing threats, еven uncommunicated threats, can be admitted ‍​​​​‌‌‌​​​​‌​‌​​​‌​‌‌​‌‌‌​‌​‌​​‌​‌​​​​‌​‌‌​‌‌​‌‌‍on behalf of the slayer, and it is different to see why statements made after, the affray are not equally admis *320 sible. If this ground had bеen stated the testimony would probably have been admitted.

3 The next question is as to thе admissibility of the statements as a part of the res gestee. -That was largely in the discretion of the triаl Judge, and it does not appear that he abused his discretion.

4 The next question is as to the admissibility ‍​​​​‌‌‌​​​​‌​‌​​​‌​‌‌​‌‌‌​‌​‌​​‌​‌​​​​‌​‌‌​‌‌​‌‌‍of the testimony as to dying declarations.

There was error here. The rule in this Stаte is well set forth in The State v. Belcher, 13 S. C. 462.

“They are only admissible from the necessity of the case, and when made in extremis—when the party is at the point of death and is conscious of it-—when evеry hope of this world is gone and every motive to falsehood is silenced by the most powerful considerations to speak the truth.”.

The deceased and the witness talked about death, but men may talk about death who do not think they are about to die. ‍​​​​‌‌‌​​​​‌​‌​​​‌​‌‌​‌‌‌​‌​‌​​‌​‌​​​​‌​‌‌​‌‌​‌‌‍The rеcord does not show that the deceased even thought that he was going to die. This exception is sustained.

The last question is, was it error to charge:

5 “If he had satisfied you that at the time he struck the fatal blow he wаs in danger of receiving serious bodily harm, or losing his own life, or the appearance were such, he go a step further. He must show you that a person of ordinary reason and prudence would have come to that same conclusion, would have come to the conclusion that at the time he struck the fatal blow he was in danger of receiving serious bodily harm or losing his own life, or the appearances wеre such to justify it. He must go a step further. He must satisfy you that he had no other means of escape, except to strike the fatal blow. The law does not permit one tо take the life of one lightly, the law says avoid taking human life if you can, and if he had othеr means of escape except to strike the fatal blow he must avail himself of it. Has he satisfied you that he had no other *321 means of escape; if so, and he hаs satisfied you on all these other propositions he has made good his pleа of self-defense; if he has failed to satisfy you on any of these, his defense falls to the ground.”

This may have misled the jury. It may have produced the impression that a way of esсape, whether apparent to a man of ordinary prudence and firmness оr not would destroy the defense. This exception is sustained.

The judgment is. reversed and a new trial ordered.

Mr. Chief Justice Gary and Messrs. Justices Watts and Gage concur in the ‍​​​​‌‌‌​​​​‌​‌​​​‌​‌‌​‌‌‌​‌​‌​​‌​‌​​​​‌​‌‌​‌‌​‌‌‍opinion of the Court, and Mr. Justice Hydrick concurs in the result.