56 S.E. 653 | S.C. | 1907
February 9, 1907. The opinion of the Court was delivered by The defendant was indicted and tried at September Term, 1906, of General Sessions for *92 Orangeburg County, for the murder of John D. Palmer at Orangeburg, S.C. on July 9th, 1906, and the jury found him guilty with a recommendation to mercy, whereupon he was sentenced to life imprisonment in the penitentiary.
The first question presented by his appeal to this Court, raised by the first, second and third exceptions, is whether the Court erred in excluding certain testimony offered by the defense through its witness, E. O: Hoover. This witness was asked by defendant's counsel to state what the defendant said immediately after the shooting. The testimony was excluded on the Solicitor's objection. The defendant's counsel contended that the testimony was admissible as a part of the res gestae, and in direct reply to the testimony of the State's witnesses, Boliver and Thomas, who testified as to statements made by defendant immediately after the shooting.
In order to render declarations admissible as a part of theres gestae, the rule is that the declarations must be substantially contemporaneous with the litigated transaction and be the instinctive, spontaneous utterances of the mind under the active, immediate influence of the transaction, the circumstances precluding the idea that the utterances are the result of reflection or design to make false or self-serving declarations. State v. McDaniel,
Henry E. Boliver, witness for the State, had testified that he was across the street from the store of defendant, that when defendant came to the door of his store a few seconds after the shooting, he said, "He called me a damn liar, and I shot him in self-defense." This witness, however, stated that defendant may have said something more which he failed to hear.
Now, counsel for defendant wished to show by the witness, Hoover, that defendant said that deceased had cursed him and shot at him twice, and he had to shoot deceased in self-defense. While it is true that when the State has offered testimony as to the declarations of the defendant concerning the homicide, it is competent for defendant in reply to show the whole of the declarations made at that time, it is perfectly manifest that the exclusion of the testimony in this instance could not have prejudiced defendant, as the testimony for the State showed clearly that substantially the same declarations had been made by defendant.
The fourth exception raises the question whether the presiding Judge charged in respect to matters of fact, in violation *94
of the Constitution, in instructing the jury in these words: "If a man calls another a damned liar or some other vile epithet and he strikes and kills him, the law does not recognize that as a sufficient legal provocation." It is contended that this was a charge on the facts, because it was in the testimony that the deceased called defendant a damned liar just before he was killed. If the charge be construed as an allusion to matter in testimony, it was put in hypothetical form and was not in violation of the rule declared in Norris v. Clinkscales,
The fifth exception alleges that the presiding Judge erred in charging the jury that the defendant must establish the plea of self-defense by a preponderance of the evidence; whereas, he should have charged in that connection that the State was bound to prove every material allegation of the indictment beyond a reasonable doubt.
At the conclusion of the charge, the jury were most explicitly instructed that the State must prove its case beyond a reasonable doubt, and that the defendant must be given the benefit of any reasonable doubt on any material fact in the case. The precise point has been ruled against appellant in State v. Way,
The exceptions are overruled, and the judgment of the Circuit Court is affirmed. *95