State v. Turner
6 S.E. 891
S.C.
1888
Check Treatment

The opinion of the court was delivered by

Mr. Chiee Justice Simpson.

The appellant was convicted of manslaughter at the October term of the Court of General Sessions, 1887, for Spartanburg County, and was sentenced to five years’ imprisonment in the penitentiary. He appeals to this court, alleging error to the charge of the trial judge in several particulars and to the exclusion of certain testimony, as appears in the exceptions found in the “Case.”

After full consideration, our conclusion is that the case must go back, and a new trial had. This is based mainly upon two of the exceptions, or rather upon two of the alleged errors, raised and presented in the exceptions of appellant, to wit: First, the exclusion of certain witnesses offered to testify as to the general character of the deceased for violence; and, second, to that portion of his honor’s charge in which he stated to the jury as follows : “I charge you that in this particular case, if you believe the defendant’s statement, that the deceased had told him, ‘God damn you, I will kill you,’ and accompanied those words by moving towards the door with an apparent purpose of putting the threat into execution immediately, then a verdict of manslaughter might be proper in the case ; or if the circumstances did not prove to your satisfaction that there was malice either express or implied.”

The rule as to the character of the deceased in cases of homicide seems to be as follows: In general, no evidence will be admitted when confined to bad character, as contra-distinguished from character for violence, ferocity, vindictiveness, &c., &c., on the ground that such testimony would be irrelevant. Nor would testimony as to violence and brutality, when offered simply as an excuse or palliation for the homicide, be competent; for the *42reason that no one has the right to take the law into his own hands and to rid the community, pro bono publico, of a dangerous member simply on the ground that he is dangerous. “But where the defendant sets up self-defence and proceeds to present a case of apparent danger honestly believed in by himself as a defence, then evidence of the deceased’s ferocity for strength, brutality, and vindictiveness is relevant to show the bona fides of the defendant’s belief.” (Wharton on Homicide, 2d edit., §§ 605 and 607.) The great matter in every case of homicide is the motive which prompted the fatal act, and to ascertain this, in justice to the accused, all of the surrounding circumstances and facts calculated to influence motive and to prompt action and relevant to the important issues involved should be admitted.

In our State the prominent case in which the question here was involved is the case of State v. Smith, 12 Rich., 430. The court said in that case: “It seems hardly necessary to observe that evidence of the character and habits of the party slain is proper only so far as they can be supposed to have affected the intention of the slayer in the fatal act. And, therefore, his general bad character is inadmissible. The evidence should be confined to a character and habits of violence, treachery, &c., such as might beget reasonable apprehensions of grievous bodily harm, and reduce the other party to the apparent necessity to slay in self-preservation. * * * But whether the general character or conduct, or particular acts of the description mentioned, be offered, it appears to be essential to their reception that it should somehow reasonably appear that the prisoner knew, or may be supposed to know, such character or conduct; for if he was ignorant of them, they could not possibly have modified his intention in the act of slaying. And, of course, if the relevancy does not appear from prior evidence in the case, the party offering it must lay the foundation for its reception in the proof of facts making it relevant, and the court must necessarily have the power to decide, subject to review, upon its relevancy.” An analysis of the ruling in this case amounts to this: such testimony is competent where it is relevant, either because of prior evidence received in the case or where the prisoner has laid the proper foundation for its reception by proof of facts making it *43relevant, and where it reasonably appears that the prisoner knew or may be supposed to have known such character or conduct.

In the case before the court the prisoner and the deceased had fought in the morning, the deceased using an axe in the rencontre. After this fight, and after the prisoner had gone to a neighbor’s house, the deceased continued near the scene of the morning conflict, and when the prisoner returned, going immediately into his store house, the deceased followed him closely, and approached the door of his house. What took place immediately, or rather what was said by the deceased at the moment of approaching his door, it is true, was not stated until after the excluded testimony had been offered and excluded. But independent of what might have been said, it seems to us, there was enough in the facts as stated to render competent, at least, testimony as to the deceased’s character for violence as bearing upon the act and motive of the prisoner. Here was a man with whom he had fought in the morning, a man who had exhibited a deadly purpose in attempting to kill him with an axe. He had followed him to his house, and without accosting him, was approaching his door. Whether he was a quiet and peaceable man or a man of blood and violence, was a fact which, under the circumstances, if known to the prisoner, he could hardly fail to consider, and which would necessarily have some'influence in determining his own course.

But the rule above laid down requires that it should reasonably appear that the prisoner knew, or may be supposed to have known, such character, offered to be proved. We think such knowledge was involved in the proposition to prove the general character of the deceased for violence. General character is that character which is generally known, and if the witnesses offered had been allowed to testify, and they had proved that the general character of the deceased for violence was bad, we think it would have reasonably appeared that the prisoner knew this, as well as others.

Next as to the charge of his honor mentioned above. The degree of a homicide in any special case depends upon the motive which prompted the killing, and this is a matter entirely for the jury. The judge should define and explain these different *44degrees, and the jury must be governed by the definition and explanations given. But whether any particular crime as defined by the judge has been committed, or whether the case is one of self-defence, as explained by the judge, is a question of fact, and is alone for the jury. Now we do not intimate, even, that the jury in this case misinterpreted the facts, being misled by the charge, and that they found manslaughter when their verdict 'should have been self-defence. We express no opinion whatever on that subject. But we think his honor’s charge above did not leave the question of self-defence open to the jury. He said the facts stated by the prisoner, if believed by the jury, might reduce the case to manslaughter, excluding thereby all consideration of self-defence in connection with said facts.

Now, self-defence as defined by Mr. G-reenleaf, 3 vol., section 116, 14th edit., is “where one is assaulted upon a sudden affray, and in the defence of his person, where certain and immediate suffering would be the consequence of waiting for the assistance of the law, and there was no other probable means of escape, he kills the assailant.” This is the proper definition, which is a question of law, but whether the facts bring the case under this principle is for the jury. And it seems to us that it ought to have been left to the jury to determine, under the facts stated, if ■proved, whether there was great danger of bodily harm, and whether the prisoner had other probable means of escape besides killing the deceased. Or, in other words, whether he had well grounded reasons to believe, (such as would influence ordinary men,) that his life or body was in danger, and that there was no probable hope of escape but in striking in his own defence, leaving it to the jury to apply the testimony to this principle of law.

We do not understand the judge to have laid down the proposition absolutely that the only way in which the jury could find the defendant not guilty was by concluding that there was no possible way of barricading against the deceased, as alleged in one of the exceptions. True, when the charge is taken in detached remarks, a portion might be susceptible of that construction; but when considered as a whole on the subject of self-defence generally, we do not think it is obnoxious to the error assigned in said exception.

*45The other exceptions are overruled.

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