Opinion
10545
December 20, 1920.
Before SHIPP, J., Florence, June term, 1920. Reversed.
George Mason indicted for murder and on conviction, appeals.
Messrs. Arrowsmith, Muldrow, Bridges Hicks, for appellant. No citations.
Mr. L.W. Gasque, Solicitor, and Henry E. Davis and Willcox Willcox, for respondent, cite: Magistrate must hold preliminary only when he has issued warrant: Crim. Code 1912, sec. 33. Coroner issued warrant under sec. 1317 Id.; and carried out other requirements: Sec. 1018; sec. 1010; 1 Civ. Code 1912, sec. 1288. Defendant had time to prepare defense: 80 S.C. 332. Continuance discretionary: 93 S.C. 412. Where witness is not bound over, defendant cannot show due diligence: 66 S.C. 449; 78 S.C. 264; 92 S.C. 120; 98 S.C. 105; 98 S.C. 422. State need not disclose its witnesses: 61 S.C. 106. And does not have to put up. hostile witness even if that deprive defendant of right to open and reply: 22 S.C. 298. No misstatement of testimony and defendant cannot complain of vigor and eloquence in argument: 98 S.C. 121; 100 S.C. 265; 110 S.C. 377. Charge correctly stated rule as to provocation sufficient to reduce murder to manslaughter: 95 S.C. 127 Self-defense has no place in definition of manslaughter: 21 Cyc. 1076.
December 20, 1920. The opinion of the Court was delivered by
On the evening of the 17th of March, 1920, the appellant, George Mason, shot and killed Arthur Howe on a street in the city of Florence. The coroner held an inquest, and, on the verdict of the jury, issued a warrant charging the appellant with murder, and committed the defendant to jail. The appellant moved before the resident magistrate of the city of Florence for a preliminary hearing. The magistrate refused the motion on the ground that he had no jurisdiction in the case.
When the case was called for trial, the appellant moved for a continuance on account of the absence of a material witness. This motion was overruled by the presiding Judge.
At the close of the evidence for the State, the defendant asked the Court to require the State to put up a witness who was present at the time of the homicide, but not called by the prosecution. This was refused.
There are exceptions to the charge to the jury.
1. The defendant had been committed to jail by the coroner, and the magistrate had no jurisdiction in the case, and properly so held.
2. The continuance was within the discretion of the trial Judge, and his discretion was not abused.
3. There is no law or rule in this State that requires the State to put up a hostile witness, and the refusal of this motion was proper.
4. The appellant complains of the great eloquence of counsel for the State and his misstatements of the evidence. Eloquence of counsel is not a ground for reversal. The record does not show the misstatement of the evidence, and there is no ground for reversal here.
5. The next cause of complaint is that his Honor, the presiding Judge, charged the jury that, while mere words do not warrant an assault or homicide, yet words accompanied by acts may be sufficient to reduce a killing from murder to manslaughter. This was error. Words accompanied by hostile acts may, according to circumstances, not only reduce a killing from murder to manslaughter, but may establish the plea of self-defense. The exception that raises this question is sustained.
The judgment is reversed, and a new trial is ordered.