State v. Whittle

Feb 25, 1901

Reporters:: , ,
Before:: Jones

The opinion of the Court was delivered by

Mr. Justice Jones.

The defendants were indicted for the murder of William Henry Johnson, and were convicted and sentenced for manslaughter, They sought to excuse the killing on the ground of self-defense, in a lawful attempt *302 to arrest Johnson without warrant, as a fugitive from Georgia for crime. It seems from the portions of the testimony printed in the ‘brief, that Johnson, in November, 1898, was ‘on a chain-gang in Georgia, serving a sentence for selling liquor without a license; that he, with other convicts, assaulted the guard, one of t‘he other convicts using an axe; that they took from the guard his rifle and pistol, and that Johnson escaped into South -Carolina. It appears that Whittle, who was deputy sheriff of Saluda County, received information of this, and that Johnson was -near Batesburg, in Lexington County. Not deeming it necessary to secure a warrant for the arrest of Johnson, notwithstanding there was ample time -and opportunity therefor, Whittle, -with Berry to assist, without a warrant, went into Lexington County to arrest Johnson. They found Johnson at or near Batesburg, in Lexington County, and with drawn pistols laid -hands - on him, without declaring the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍purpose of -the arrest, and without Johnson demanding the same. Up to this point, Johnson made no resistance, and on1 demand delivered to Whittle his pistol. Defendants then endeavored to handcuff Johnson, whereupon ‘he protested and struggled to prevent. At this stage, the mother and wife of Johnson appeared, calling upon defendants to turn him loose. The wife struck Whittle with a stick and the -mother struck Berry -with a stick. Then the mother secured a hammer and with it struck Berry on the head. According to the testimony for the State, when Berry was struck with the hammer, he turned Johnson loose, then seized him again, when Johnson either pushed or struck him with his arm or fist, whereupon Berry shot Johnson, and that then, as Johnson was falling, Whittle stooped down -and shot him. According to the testimony for the State, Johnson was unarmed. Whittle testified that Berry did not shoot, but that he, Whittle, shot Johnson, and that he -considered ‘his life in danger at the time. Whittle testified: “When she (the mother) hit Berry with the hammer, Johnson hit him at the same time with his fist, staggered him a little from Johnson. *303 Johnson too‘k a pistol out of his right hand front pants pocket, and Berry grabbed back for pistol with his hand; when he grabbed, the pistol went off, then I shot Johnson.”

i The exceptions, which are reported herewith, all appertain to the charge to the jury. Some of these exceptions are faulty in failing to specify what particular rule or principle of law was violated by the Judge in ‘his charge to the jury. It has been several times held that this ‘Court is not required to pass upon an exception which merely, in general terms, complains of error in a quoted portion of the charge, without specifying wherein the error consists. Finley v. Cudd, 42 S. C., 125; Vann v. Howle, 44 S. C., 546. It is only when the quoted portion of the charge contains but a single proposition, that an exception complaining of error therein may be deemed sufficient to authorize a consideration of that proposition; and even then there must be no-room for speculation as to what particular rule or principle is alleged, to have been violated.

2 3 We will ‘first notice the 5th, 6th and 12th exceptions, which complain that the quoted charge was (1) in respect to matters of fact, an‘d (2) contrary to the law of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Georgia, wherein-the.deceased was charged with felony;‘for Which the defendants were attempting -to arrest the deceased at the time of the homicide. The -charge objected to in the 5th exception was: “If a convict take a gun from a guard forcibly for the purpose of making safe hi-s escape, but not feloniously with intent to appropriate the same to his own use, the offense would -not be robbery and not a felony.”- This charge was upon a hypothetical statement of f^cts, which it has frequently been held -is- not a charge in respect to matters of fact, in violation of the Constitution prohibiting the same. Nor was the charge contrary to the law of Georgia as to felony. It appears from the Criminal Code of Georgia, offered in evidence by the defendants, sec. 151, that “Robbery is the wrongful, fraudulent and violent taking of money, goods or chattels from the person of another by force or -intimidation, without *304 the consent of ‘the owner.” By this statute, as at common law, it is essential to the crime of robbery that the taking shall be “from the person” of another. As the facts hypothetically stated did not necessarily include a taking from the person, the charge was not erroneous, even if, under the Georgia statute, the animus furandi is eliminated as an essential element of robbery.

4 The charge complained of in the 6th exception, viz: “If a person serving a sentence for a misdemeanor enters into a conspiracy to make his escape, and not to commit murder, the offense is not a felony,” was also upon a hypothetical statement of facts merely. Nor was it shown that by the law of Georgia a conspiracy to escape from serving under a sentence-for a misdemeanor is more than a misdemeanor. On ‘the contrary, it appears in the brief, that escaping from a chain-gang under sentence for selling liquor, is in Georgia a misdemeanor, and punishable not exceeding one year on the chain-gang. It further appears by sec. 2, Criminal Code of Georgia, offered in evidence, that “the term felony means an offense for which the offender on conviction shall be liable to be punished by death or imprisonment in the penitentiary, and not otherwise.” From these it does not appear that there was any error in the charge as complained.

5 Nor do we think the 12th exception is well taken. It appeared as an undisputed fact that selling liquor without a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍license is a misdemeanor in Georgia. While it is true that what is the law of another State is a fact to be proven, Horne v. McRae, 53 S. C., 51, yet it is not a charge upon the facts for the Court to construe the language of documentary evidence such as the statutes of another State.

6 We will next consider whether the Court committed error in charging as to the law of self-defense, as complained in the seventh and eighth exceptions. “The jury were clearly instruoted, substantially, in accordance with the well settled rule in this State, that in order to make out a *305 case of self-defense, it is necessary to show (I) that the accused believed it necessary to take his assailant’s life in order to save his own life, or to avoid serious ‘bodily harm, (2) that the circumstances were such as in the opinion of the jury warranted such a belief in a person of ordinary firmness and prudence when situated as the accused, (3) the accused must be without fault in bringing about the difficulty. The matter objected to in the seventh exception was free from error, and the Court did not refuse to charge as complained in the eighth exception; but, on the contrary, charged the same with an explanation in conformity with the second element of self-defense, as stated above, viz: that in determining whether defendants were in danger of serious bodily harm, the jury were to inquire whether a man of average sense and disposition, under circumstances as those surrounding defendants, would have acted as did the defendants.

In reference to the ninth exception, the Court did not substantially modify the request quoted in the exception; but, on the contrary, repeatedly instructed the jury that in considering the whole case, they must give the defendants the benefit of any reasonable doubt, and acquit if such doubt existed.

7 We will next consider whether there was prejudicial error in the instructions as to the right of a private person to arrest without warrant any one who is a fugitive from another State charged with crime. The tenth and eleventh exceptions touch this matter. The jury were instructed, in the language of the act of 1898, 22 Stat., 809, amending sec. 1, Criminal Statutes, so as to read: “Upon view of a felony committed, or upon certain information that a felony has been committed, or upon view of a larceny committed, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍any person may arrest the felon, or thief, and take him to a Judge or magistrate, to be dealt with according to law.” The jury were also instructed, in the language of sec. 4, Criminal Statutes, providing that “Any officer in this State authorized by law to issue warrants for *306 the arrests of persons charged with crime, shall, on satisfactory information laid before him, under the oath of any credible person, that any fugitive in the State has committed out1 of the State and within any other State any offense which by the law of the State in which the offense was committed is punishable either capitally or by imprisonment for one year or upwards in any State prison, shall have full power and authority, and is hereby required, to issue a warrant for said fugitive, and commit him to any jail within the State for the space of twenty days, unless sooner demanded by the public authorities’ of the State wherein the offense may have been committed, agreeable to the act of Congress in that case made and provided, &c.” The Judge charged defendants’ 15th, 16th and 17th requests to charge as follows: “15. An officer or a private individual may lawfully arrest without a warrant one whom he has reasonable grounds to suspect of having committed a felony. 16. An officer or a private individual may also arrest without a warrant a person upon suspicion of felony, upon the information of a third person. 17. An officer or a private citizen may lawfully arrest without a warrant one whom he has reasonable grounds to suspect of having committed a felony, and it is’ immaterial whether the suspicion arises out of information given by another, or whether it arises out of the officer’s own knowledge.” When charging these requests of defendant, the Judge said he charged them in connection with the law which he read from the statute. Then, in connection with defendants’ eighteenth request, which was: “An individual without a warrant, acting in good faith, may arrest a particular individual for having committed a felony in a sister State on an occasion already passed,” the Judge, referring to the provisions of sec. 4 of the Criminal Statutes, quoted above, instructed the jury that any one liable to be arrested as a fugitive from justice by warrant, might be arrested by a private person without warrant, from necessity and sound ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍policy, on showing -that prima facie a félony or some crime punishable, either capitally orbyimprisonment *307 for one year or upwards in a State prison, was in fact committed, and the prisoner was the perpetrator. Then, responding to defendants’ nineteenth request, which is embodied in the eleventh exception, the Judge charged it, merely substituting for the word felony, “any offense which by law of the State in which the offense was committed is punishable, either capitally or by imprisonment for one year or upwards in any State prison.” This charge was quite as favorable for the defendants as they could possibly ask; since, under it, they were allowed to show that the deceased was liable to arrest by a private person without warrant for such crimes committed in Georgia, as were punishable by imprisonment in a State prison for one year or more, which would include robbery, grand larceny, assault with intent to murder with a deadly weapon, and was sufficiently comprehensive to cover any possible view that the jury could take of the evidence offered by the defense.

We think that the exceptions fail to present any proper ground for reversal of the judgment of the Circuit Court, and such judgment is, therefore, affirmed.