Summary
In State v. Blakely (1929), 158 S.C. 304, 155 S.E. 408, conviction of murder, without recommendation, was reversed upon the single ground that the trial judge had erred in stating to the jury that they had "mighty little to do with mercy" and in further stating to them circumstances that would justify their recommending mercy.
Summary of this case from The State v. WorthyOpinion
12992
October 8, 1930.
Before HENRY. J., Greenville, 1929. Reversed and remanded.
Norman Blakely was convicted of murder without recommendation to mercy, and he appeals.
PORTION OF JUDGE'S CHARGENow, you and I have mighty little to do with mercy; you have some grounds for extending mercy, the jury has, and ought to extend it in some cases. Now, here is a case in which you ought to extend mercy; while there is no legal excuse or justification for the killing, a man might be so exasperated that he could, that it would not reduce the killing to manslaughter by his exasperation; it was not suddenly aroused, but he had nursed his anger for some time. A member of his family has been grossly insulted in his absence, and he is informed about it, and it would arouse the anger of any man to have the helpless members of his family insulted in his absence, and he might have gone out and hunted the man down and killed him, and the insult might be so gross most any of us would feel like he had some cause, and in that case he ought to be recommended to the mercy of the Court. Suppose one of your children was beaten up. Now you cannot avenge your own wrong, beaten up by some wicked person, you would naturally want to get your gun and kill him, to go out and shoot him down like a dog. Well, there are extenuating circumstances about a killing of that kind. Might use words to your wife, and there are extenuating circumstances around that; or your daughter, and a killing under those circumstances, the insult might be so gross, then you ought to recommend that he ought not suffer the full penalty of the law. Where a man of ordinary courage, although he killed him in hot blood, it would not be manslaughter, because he deliberated over it too long a time. It must be suddenly aroused; he might deliberate longer than would reduce it to manslaughter. Then that man, in a case like that, ought to be recommended to the mercy of the Court; and, if you find extenuating circumstances in this case like that, you ought to recommend it to the mercy of the Court. And those are the kinds of cases that are provided for your extending mercy; otherwise you have nothing to do with mercy, and the most merciful thing you can do is to abide by your oath and find the truth, and my duty is to tell you what the law is and you be governed by it. The law takes care of the balance of it, we have nothing to do with it in the world. That is the reason I am surprised when a man like that says he is opposed to capital punishment; that has nothing to do with your duty; you are sworn to tell the truth. I have to sentence a man to be electrocuted, but my business is to declare the law, and I cannot get out of it, having accepted the job of Judge, and you cannot get out of it no matter what you think. You cannot of your own free will recommend or not recommend because you are opposed to capital punishment. There is a false notion about that, and I always excuse a man because I see he has not got the proper conception of his duty as a juror, who is supposed to find the truth, and what follows after that he has nothing to do with that, no more than the man in the moon. You take care of your duty, and I will take care of mine, and, if you find extenuating circumstances, recommend this man to mercy; it is your duty to do so.
Now, there are one of four verdicts you can find in this case. You can find him guilty, that forfeits his life by the State, not by you; guilty, recommended to the mercy of the Court, if there are extenuating circumstances surrounding the killing, that forfeits his liberty for the balance of his natural life; guilty of manslaughter, that is where he killed in sudden heat and passion upon some sufficient legal provocation, or not guilty if the case has not been proven to your satisfaction beyond a reasonable doubt. Now which is right is for you, I cannot intimate anything. If you find him guilty write the word "Guilty" and sign your name above the word "Foreman"; if there are extenuating circumstances, write "Guilty, recommended to the mercy of the Court," and sign your name above the word "Foreman"; and if guilty of manslaughter, write "Guilty of manslaughter" and sign your name as foreman; and, if not guilty, write the two words "not guilty" and sign your name as foreman.
Messrs. E.L. Wooten and C.S. Bowen, for appellant, cite: Error in charge as to reasonable doubt: 121 S.C. 324; 113 S.C. 637; 78 Me., 509; 1 Speer's, 93. Defendant entitled to every reasonable doubt: 131 S.C. 236; 126 S.E., 766; 84 S.C. 503; 66 S.E., 877; 16 C.J., Sec. 2393; 121 S.C. 11; 113 S.E., 304. Error in charge as to malice: 73 S.C. 340; 53 S.E., 493; 29 S.C. 34; 6 S.E., 891. Error in charge as to recommendation to mercy: Criminal Code, 1922, Sec. 2; 86 S.C. 143; 67 S.E., 466.
Mr. J.G. Leatherwood, Solicitor, for the State.
October 8, 1930. The opinion of the Court was delivered by
The appellant, a negro youth, 16 years of age, while serving a sentence on the Greenville chaingang, killed Mr. D. M. Garret, one of the guards, by hitting Garrett with a shovel. On his trial for murder, in the Court of General Sessions for Greenville County, he was convicted, without recommendation to mercy, and sentenced to death by electrocution.
In the appeal to this Court, there are eight exceptions, all charging error in the matter of instructions given by the presiding Judge to the jury.
We think it only necessary to pass upon the exceptions, questioning the correctness of the instructions as to the right and duty of the jury to recommend the appellant to the mercy of the Court, in the event the jury reached the conclusion that the appellant was guilty of murder. These exceptions must be sustained. See the case of State v. King 158 S.C. 251, 155 S.E., 409, where the identical questions were raised and decided favorably to the appellant's contention.
The portions of the charge of the Circuit Judge relating to the jury's power to recommend one found guilty of murder to the mercy of the Court will be reported.
The judgment of this Court is that the judgment below be reversed, and that the case be remanded to the Court of General Sessions of Greenville County for a new trial.
MESSRS. JUSTICES COTHRAN, STABLER and CARTER and MR. ACTING ASSOCIATE JUSTICE MENDEL L. SMITH concur.