Summary
In State v. Strickland, 147 S.C. 514, 145 S.E. 404, this Court held that the solicitor's remarks, in argument, to the jury that he had never in all his experience seen a stronger case of murder than was borne out by the facts in the instant case, were not reversible error.
Summary of this case from Harper v. BoltonOpinion
12525
November 15, 1928.
Before SHIPP, J., Horry, June, 1927. Reversed and remanded.
Will Strickland was convicted of murder, and he appeals.
The Judge's charge was as follows:
Mr. Foreman and gentlemen of the jury: The indictment in this case charges the defendant, Will Strickland, with the murder of Kirby Ward. The name of Albert Bryant is mentioned here as a codefendant, but you need not consider any charge against him, because he is not on trial. The only one on trial is Will Strickland.
It is charged in the indictment on the 31st day of October, 1926, in Horry County, that William Strickland, with malice aforethought, with a shotgun, did shoot Kirby Ward — with malice aforethought he did kill and murder Kirby Ward. The defendant pleads "not guilty," and, with that plea on his part it makes it incumbent upon the State to prove his guilt to your satisfaction by the evidence beyond a reasonable doubt. The defendant is presumed, when he comes into Court charged with a crime, to be innocent, and that presumption of innocence attends him throughout the trial, until the State, by the evidence, satisfies the jury that he is guilty beyond a reasonable doubt. I cannot hardly make the words "reasonable doubt" any plainer than it is. It means a strong, substantial doubt that comes out of the testimony in the case — when you have heard the evidence you hesitate what your duty is. When you have heard all the testimony in the case, if you have a reasonable doubt, that is, such a reasonable doubt a reasonable man would feel, after he hears the testimony in the case — if you have a reasonable doubt about his guilt, you would find him not guilty, because, in order to convict him of anything, murder or manslaughter, the State must convince you beyond a reasonable doubt.
Murder is the felonious killing of a human being with malice aforethought, either expressed or implied.
When we use the words "expressed" and "implied," we are referring to exactly the same kind of malice. The words expressed or implied indicates the method malice is proven. By malice it means a wicked purpose, a wicked design, premeditated purpose to take human life, or violate the law. Where a person takes human life deliberately and intentionally, and he does it under circumstances which exclude any legal justification or excuse, he is guilty of murder. Where a person deliberately makes up his mind to violate the law, if he does that deliberately and premeditatively, if he had no legal excuse for it, you would say he does a malicious act. If a man goes out here and goes by one of the places about town, and he walks up and pulls down a fence, if he deliberately tears down the fence around your yard, he does it on purpose, and he has no legal excuse for it, you say he did a malicious act — he did it purposely, and he had no legal excuse for it.
Malice is the willful doing of a wrongful act under circumstances which exclude any legal justification of excuse. Where a person deliberately takes human life, he does it on purpose, and he has no legal excuse for it, he is guilty of murder. When he does that deliberately, and he has no legal excuse for it, he does it with malice — that is what you mean by malice — doing something deliberately and having no legal excuse for it.
Malice aforethought means where he does it with preparation — prepares for it. If he does it premeditatively, determines beforehand he will do the unlawful act.
Express malice is proving by some evidence, such as lying in wait, former grudges, some outward expression which would indicate the inward intention.
Implied malice is where a person takes human life with a deadly weapon — uses a deadly weapon to take human life. If you have nothing before you except he took human life with a deadly weapon, the law would imply that it was done with malice.
Manslaughter is a very different thing from murder. In the case of murder, a person takes human life, and has no legal excuse to offer. In manslaughter, a person takes human life, and yet he does it without having the wicked spirit called malice. It is different in this way. It is the unlawful taking of human life in sudden heat and passion upon sufficient legal provocation. The law recognizes that human nature is a weak thing and is liable to give way to passion, and the law, recognizing that, provides that, when a person in sudden heat and passion takes human life, if the passion is aroused by what is known as adequate legal cause, the law would reduce the killing from murder to manslaughter. It is very necessary for you to understand what is meant by adequate legal cause — such cause as the law recognizes as would reduce the killing from murder to manslaughter, if it arouses and excites the passion. If a person does you some wrong — not mere words, because words are never sufficient in law to constitute what the law recognizes as adequate cause — it must be some wrongful act which is calculated to arouse the passion of a person of ordinary courage and reason. You take the ordinary man of average courage and reason. It says whenever some wrong has been done to a person that would be sufficient to excite the passions, to arouse the passions, of a man of ordinary firmness and courage, that is what is denominated as adequate cause. Mr. Foreman, suppose I should meet you on the street and do some wrong to you — suppose I would slap you off the sidewalk — suppose I should spit in your face, and you should fly into a sudden heat and passion on account of that, and take my life, the law recognizes that a person is liable to fly into a passion when some wrong like that is done him, and it would not hold him guilty of murder when he takes human life aroused by some sort of act as that. If a person does a wrong to some member of your family, and you are informed of it, and your passions are aroused on account of it, that might constitute what is called adequate legal cause. If your passions are excited, and, while under the influence of a passion of that sort, you take human life — if the passion is aroused by sufficient legal provocation, you would not be guilty of murder, but would be guilty of manslaughter.
The defendant in this case has set up the plea of self-defense. That is a plea that the law recognizes. It is founded on the law of nature and recognized by our State law. When a person sets up the plea of self-defense, the burden is upon him to establish his plea by the greater weight or preponderance of the testimony. In the first place, he must convince the jury by the greater weight of the testimony — he must satisfy the jury by the greater weight of the testimony that he was without fault in bringing on the difficulty, because the law would not allow him to go seek a difficulty, to bring it about, and then shield himself under the plea of self-defense. I must prove in the first place that I was without fault in bringing on the difficulty. If he proves that, he must go a step further and show you that he had no reasonable means of avoiding the difficulty, because, if I can avoid the taking of human life with reasonable safety to myself, it is my duty to avail myself of any reasonable means I have of avoiding the difficulty, because the law does not allow any persons to take human life unless it is impelled by necessity to do it, or what appears to him to be necessary at the time. If a person had a reasonable way of avoiding the difficulty, it is his duty to avail himself of it. Then he must go a step further — he must show not only that he did not bring the difficulty about and he had no reasonable means of avoiding it, but at the time the shot was fired that he believed that he was in imminent danger of losing his life or suffering serious bodily harm. He must show you that the circumstances surrounding it were such, if you placed a man of ordinary firmness and coolness surrounded by the same facts and circumstances surrounding him at the time, that a person of ordinary reason and courage would have believed it was necessary to shoot in order to save himself from serious injury or death. The law takes the standard by which it judges your rights and my rights — it takes a person of ordinary reason and courage. Whenever circumstances are such that a person of ordinary reason and courage, if he were placed in the same situation that the man who pleads self-defense is placed in, if the man of ordinary reason and courage would believe it was necessary to shoot in order to avoid serious danger or serious bodily harm, the defendant pleading self-defense would be justified in taking human life under those circumstances. What is the test? It is not that the man must be in actual danger. He has a right to act according to the way things appear to him at the time. You take into consideration — and any jury which tries a man which pleads self-defense ought to try to place itself as nearly in the situation of the defendant as it can from the testimony. You are the judges of the credibility of witnesses. You are to inquire the circumstances surrounding the parties from the testimony, and place yourself in the position of the defendant. Look at it from his standpoint, as you view the testimony — surround yourself as near as you can with the circumstances surrounding the defendant at the time. Take into consideration the character of the deceased, if there is anything about that. If he has uttered threats against the defendant, take that into consideration, then ask yourselves the question: "Did the defendant in this case, at the time of the fatal encounter, did he act like a person of ordinary reason and courage would have acted under the same situation and in the same circumstances?" Where a person makes out the plea of self-defense under those circumstances, and proves it by the greater weight of the testimony, he is entitled to an acquittal. When a person comes into Court and admits he took human life, and sets up the plea of self-defense, the burden is on him to establish by the greater weight of the testimony that he was without fault in bringing on the difficulty, there was no reasonable means of avoiding the difficulty, and he believed at the time the fatal shot was fired that he was in imminent danger of losing his life or suffering serious bodily harm. He must show you that, if a person of ordinary reason and courage had been placed in the same situation, he would have believed it was necessary to shoot in order to protect himself.
I have been asked to charge you a number of requests by the defendant, which I think I have practically covered.
(The Court reads request No. 1.)
Request No. 1. The law of self-defense is founded upon the law of apparent necessity, and whenever and wherever the necessity appears to be real or bears all the semblance of reality, and appears to admit of no other alternative, the defense is made out. I charge you that, as I have already. There may be no real danger. If the appearances are such that a person of ordinary reason would have considered it necessary to strike in order to protect himself, the defense would be made out, provided the other elements of self-defense are made out.
(Reads request No. 2.)
Request No. 2. To excuse the killing, it need not appear that the danger was real and that the homicidal act was in fact necessary. The killing may be excusable, although it turns out afterwards that there was no actual danger. The belief need be no more than reasonable, and, if the defendant acted in good faith, with reasonable judgment and discretion, he will be excusable, even though there was no real danger.
I charge you that in connection with what I have already said.
Request No. 3. Whether reasonable grounds existed for the defendant's belief in this case is a question for the jury's determination. Then necessarily the question for your determination here is, Did the defendant, under all the circumstances as they appeared to him at the time, honestly believe that he was really in danger of losing his life or of suffering serious bodily harm, and that it was necessary, in order to save himself from apparent certain danger of death or serious bodily harm, to act as he did? If he did so believe and so determine from the appearances surrounding him, and if he acted from reasonably honest convictions, he will not be held responsible criminally for the mistake of the extent of the actual danger, and proof of threats may lend color to acts that would otherwise appear unimportant, and a person whose life has been threatened by others whom he knows or has reason to believe have armed themselves for the purpose of taking his life or inflicting a great personal injury on him may reasonably infer when a meeting occurs, that his adversary intends to carry his threats into execution, and any demonstration of an immediate intention to execute such threats justifies the defendant in defending himself against the apparent attack of his adversary, and if the threats have been communicated to the defendant and at the time of the fatal encounter of meeting the deceased made such a demonstration of force as would induce a well-founded belief in the mind of a reasonable person that the deceased was on the eve of executing the threat, and that the defendant's only means of escape from death or great bodily danger was immediately to defend himself against the apparent certain danger, the law of self-defense would justify him in the use of whatever force was necessary to avert the threatened peril.
The Court (after reading a few lines of the request): I cannot charge you, Mr. Foreman, anything about the facts of the case. I am not intending to express any opinion here. It is for you to decide. I have no right to express any opinion to you (continues reading until he reaches the words "or has reason to believe have armed themselves" and then he said) if they did so arm themselves, I add (continues reading request to charge). I charge you that in connection with what I have already said to you.
Request No. 4. If the deceased was a man of violent and dangerous reputation, and so known to defendant, more prompt and decisive measures of defense are justifiable on the part of the defendant than if he were of a peaceful disposition, and it is not necessary for the defendant to retreat when to do so would increase or will not diminish his peril, and if it appeared to the defendant that the attack is made with a settled design and intention of taking his life and of doing him great bodily harm, and that ultimate safety cannot be secured by retreat, the defendant would be justified in advancing upon his assailant and slaying him, if the facts and circumstances were such that they would have induced the same state of mind in any other person of ordinary reason, firmness, coolness, and courage.
The Court (on request No. 4): He has asked me to charge you something on the facts. I charge you, Mr. Foreman, that you must try to place yourself in the situation of the defendant, under the same facts and circumstances, surrounding yourself by all the facts and circumstances. If there were any threats, you take that into consideration. A person has a right to act on circumstances from the way they appear to him at the time. You take into consideration all the facts and circumstances. On account of some expressions in the fourth request, I cannot charge it, because it would be a charge on the facts, and I have practically charged you what he asked me to charge you there.
Request No. 5. It is not the law of this State that upon receipt of threats the defendant is required to secrete himself to avoid the deceased. On the contrary, the defendant was justified, and it was his duty to proceed with his legitimate business, and, in seeking the protection of the officers of the law in order that the deceased should be arrested for an assault upon a member of the defendant's family, he was not at fault, and, if the attack was made upon defendant while the defendant was seeking the aid of an officer of the law in order to effect the arrest of the deceased for an assault upon a female member of his household, and if the deceased was known to the defendant as a man of violent and dangerous reputation and disposition, and threats had been communicated to the defendant, and the defendant, under all the circumstances as they appeared to him, believed that he was in imminent danger of losing his life or suffering a great bodily harm, and that it was necessary for him to do what he did to save himself from such danger as he believed existed, then this verdict should be not guilty.
The Court: This is a charge on the facts, so I have no right to express any opinion about it. I will charge you this, Mr. Foreman, that a person has no right — if you have had trouble with some one, you have no right to seek him out for the purpose of raising a difficulty, but you are not required to stay in your home. You have a right to go on your usual business.
If you should go ahead and happen to meet up with the person you have had a difficulty with, if you just meet him, and you go about your business, and he engages in a difficulty with you, you do not lose your right to self-defense. If a man goes and seeks out a man for the purpose of raising a difficulty with him, if he goes out there for the purpose of abetting some wrong, he could not plead self-defense, but, if going about his usual business, he meets up with the person with whom he has had a difficulty, and he instigates the difficulty, he is not deprived of his right of self-defense. If he is attacked, he has the right to meet attack with attack. He has a right to protect himself, under the rules of self-defense that I have already defined to you.
Request No. 6. (Reads request.)
It is not essential that an actual assault should have been made on the defendant or that any blow should have been struck or that deceased was within striking distance of the defendant, if the attack was apparently imminent and dangerous, and if the circumstances were sufficient to excite the fears of a reasonable man of death or serious bodily harm, and the defendant acted under the influence of these fears so reasonably grounded, the defendant is not guilty.
The Court: I charge you that.
Request No. 7. (Reads request.)
I further charge you that, if at the time of the killing the defendant believed the deceased was about to kill him or to do him serious bodily harm, and that he acted under the fears of a reasonably courageous man, and that the circumstances were such as to excite the fears of such a man, after taking into consideration the communicated threats and the reputation of the deceased for violence in interpreting any action on the part of the deceased, defendant actually believed he was in danger of death or serious bodily harm and killed deceased to save himself from such death or serious bodily harm, he is not guilty, and should be acquitted.
The Court: I charge you that.
Request No. 8. (Reads request.)
The defendant is entitled to the benefit of all reasonable doubt on each an every material fact of this case, and, before the jury can convict the defendant of any offense under this indictment, they must be convinced of his guilt beyond all reasonable doubt, and, if they have such reasonable doubt in this case, it is your duty to acquit the defendant.
The Court: I charge you that. In connection with that I charge you, if you have a reasonable doubt as to whether he is guilty of murder or manslaughter, why you would find him guilty of manslaughter and not murder. Find him guilty on the lesser charge, if you have a doubt. If on the whole case you have a reasonable doubt as to the guilt of the defendant on anything, you would find him not guilty.
I think I have defined to you the difference between murder and manslaughter. I might say this to you, in view of something that has been said in the case: The defendant would not have a right to seek out the deceased on account of some wrong done to members of his family, if you believe any was done. You have no right to go take his life on that account. You have got before you the question of murder and manslaughter. You have a right to know all the facts and circumstances surrounding the case. I have defined to you the question of adequate cause. If a person has his passion excited, and takes human life before he has had cooling time, and while under the heat of passion, as a result of sudden heat of passion, brought about by legal adequate cause, he is guilty of manslaughter and not murder.
You also have a right to take into consideration the facts and circumstances that you have heard in the case, in order to see the situation of the defendant. When you come to consider his plea of self-defense, interpret his acts and the acts of deceased. You take into consideration those facts and circumstances in determining the plea of self-defense.
You might reach one of several verdicts in this case. You might say, "We find the defendant, Will Strickland, guilty," which means he would suffer death in the electric chair. "Guilty of manslaughter," which would mean imprisonment anywhere from 2 to 20 years; or you can find him not guilty. In all cases where a man's life is involved, you can add to your verdict recommendation of mercy. If you find him guilty, it would mean death in the electric chair. If you say guilty with recommendation to mercy, it would mean imprisonment in the penitentiary or the county works for the balance of his natural life. Or you can say "guilty of manslaughter," or "guilty of manslaughter with recommendation to mercy," which would be in the discretion of the Judge; or "not guilty," according to your view of the case. Take the indictment and say, "We find Will Strickland guilty," or "guilty with recommendation for mercy," or "we find him guilty of manslaughter," or "guilty of manslaughter with recommendation to mercy," or "we find the defendant, Will Strickland, not guilty."
Defendant's exceptions are as follows:
I. The Court erred in admitting testimony of the witness, Mrs. Alice Harper, over defendant's objection, as follows:
"Q. Did you see the young ladies pass?
"A. Yes, sir.
"Q. Which passed your home first?
"A. Kirby Ward.
"Q. How long before the other car passed?
"A. Just a few minutes.
"Mr. Spears: I note an objection because it is not in reply to any new matter brought out by the defense. It was a matter entered into by the State in their direct, and it is not in contradiction of any witness. It cannot be admitted. It is cumulative, not in reply and not in contradiction.
"The Court: I understood the defendant's witnesses to testify that they went down the road and the Wards' car followed them. That would be in reply.
"Q. I will ask you this — did you see your brother's car stop?
"A. Yes, sir.
"Q. Did that car of your brother's — did they leave it where it stopped in the road that afternoon?
"A. No, sir.
"Mr. Spears: Note the same objection that I have heretofore made.
"The Court: They said the shooting occurred when the car was stopped. The defense has undertaken to show what occurred before the shooting — one car followed the other and ran into the car."
The error being that same was not in reply to new matter brought out by the defendant, but was in corroboration of the State's testimony in chief.
II. The Court erred in permitting the solicitor to make following statements to the jury in his argument over the defendant's protest, "I have never before in my experience as Solicitor seen a stronger case of murder than borne out by the facts in this case," in that said statement was not argumentative, but was an opinion, a conclusion, expressed by an officer of the Court, highly prejudicial to the defendant.
III. The Court erred in permitting the Solicitor to make following statement to the jury in his argument: "For my friends' benefit, I will repeat it: In all my experience as Solicitor, I have never seen a stronger case of murder than borne out by the facts in this case." Said statement being a reaffirmation of an opinion, a conclusion, not argumentative, and unfair, and highly prejudicial to the defendant.
IV. The Court erred, while charging the jury the law of self-defense, in the following charge: "In the first place he must convince the jury by the greater weight of the testimony — he must satisfy the jury by the greater weight of the testimony that he was without fault in bringing on the difficulty." The error being that, by the combination of the expressions "convince" and "satisfy," the degree of proof is raised to a standard beyond that required by law.
V. The Court erred in refusing defendant's fourth request to charge as follows:
"If the deceased was a man of violent and dangerous reputation and so known to defendant, more prompt and decisive measures of defense are justifiable on the part of the defendant than if he were of a peaceable disposition, and it is not necessary for the defendant to retreat when to do so will increase or will not diminish his peril, and if it appears to the defendant that the attack is made with a settled design and intention of taking his life and of doing him great bodily harm and that ultimate safety cannot be secured by retreat, the defendant would be justified in advancing upon his assailant and slaying him if the facts and circumstances were such that they would have induced the same state of mind in any other person of ordinary reason, firmness, coolness and courage." The error being that said request was a statement of law applicable to the case, and to which the defendant was entitled.
VI. The Court erred in charging the jury as follows: "I will charge you this, Mr. Foreman, that a person has no right — if you have had trouble with some one, you have no right to seek him out for the purpose of raising a difficulty, but you are not required to stay in your home. You have a right to go on your usual business. If you should go ahead and happen to meet up with the person you have had a difficulty with, if you just meet him and you go about your business, and he engages in a difficulty with you, you do not lose your right of self-defense. If a man goes and seeks out a man for the purpose of raising a difficulty with him, if he goes out there for the purpose of abetting some wrong he could not plead self-defense. * * *" The error being that same was a charge on the facts — indicating an opinion of the Court prejudicial to the defendant.
VII. The Court erred in charging the jury as follows: "I might say this to you in view of something that has been said in this case. The defendant would not have a right to seek out the deceased on account of some wrong done to members of his family, if you believe any was done. You have no right to take his life on that account. You have before you the question of murder and manslaughter." The error being (a) the same was a charge on the facts — an indication of the opinion of the Court — prejudicial to the defendant. (b) It eliminated or fatally discounted the defendant's plea of self-defense.
VIII. The Court erred in refusing to charge defendant's third request to charge as follows: "Whether reasonable grounds existed for the defendant's belief in this case is a question for the jury's determination. Then necessarily the question for your determination here is, Did the defendant under all the circumstances as they appeared to him at the time honestly believe that he was really in danger of losing his life or of suffering serious bodily harm and that it was necessary in order to save himself from apparent certain danger of death or serious bodily harm to act as he did? If he did so believe and so determine from the appearance surrounding him, and if he acted from reasonably honest convictions, he will not be held responsible criminally for the mistake of the extent of the actual danger, and proof of threats may lend color to acts that would otherwise appear unimportant, and a person whose life has been threatened by others whom he knows, or has reason to believe have armed themselves for the purpose of taking his life or inflicting a great personal injury on him, may reasonably infer when a meeting occurs, that his adversary intends to carry his threats into execution, and any demonstration of an immediate intention to execute such threats justifies the defendant in defending himself against the apparent attack of his adversary, and if the threats have been communicated to the defendant and at the time of the fatal encounter or meeting the deceased made such a demonstration of force as would induce a well-founded belief in the mind of a reasonable person that the deceased was on the eve of executing the threat, and that the defendant's only means of escape from death or great bodily danger was immediately to defend himself against the apparent certain danger, the law of self-defense would justify him in the use of whatever force was necessary to avert the threatened peril." The error being that the request was a statement of law applicable to the case, and the defendant in his trial was entitled to it.
IX. The Court erred in refusing defendant's motion for a new trial on grounds made as follows: (a) Admission of testimony over defendant's objection; (b) that verdict of jury is not supported by testimony; (c) that the Court erred in refusing defendant's third request to charge; (d) erred in charging jury at close of charge.
Messrs. Spears, Wood McMillan, for appellant, cite: Error for prosecuting attorney to declare his belief of defendant's guilt to jury when inference that belief based upon knowledge outside the evidence: 16 C.J., 908, 110 Ky., 356, 88 S.C. 227, 139 S.C. 513, 92 S.C. 236, 131 S.C. 159, 120 S.C. 285. Charge here as to burden of proof for self-defense error: Art. 5, Sec. 26, Const. 1895. Charge on facts: 91 S.C. 202, 98 S.C. 299.
Solicitor L.M. Gasque, and Messrs. Ford Suggs, for respondent, cite: As to improper argument of prosecuting attorney: 88 S.C. 229, 65 S.C. 242, 26 S.C. 117, 2 R.C. L., 427, Sec. 26. As to charge on facts: 58 S.C. 373, 80 S.C. 531, 63 S.C. 494, 63 S.C. 307, 74 S.C. 456.
November 15, 1928.
The opinion of the Court was delivered by
I do not agree with Mr. Justice Cothran that there should be an affirmance of the judgment in this case. I think a new trial should be granted, and will state briefly my reasons therefor:
On October 31, 1926, the defendant, Strickland, shot and killed one Kirby Ward. He was indicted for murder and tried at the June, 1927, term of the General Sessions Court for Horry County. On trial, the defendant admitted the killing, but claimed he fired the fatal shot in defense of his own life. The jury found him guilty, "with a recommendation to the mercy of the Court," and he now appeals and imputes error.
The testimony offered by the defendant tended to show that, on the day Ward was killed, the automobile in which his three daughters and his sister were riding along the highway was run into from the rear by a car driven in a reckless manner by the deceased and his brother, Onslow Ward, who appeared to be under the influence of liquor; that, following the collision, the young men cursed and abused the young women, and in driving around them again collided with their car and again cursed and abused them; that they proceeded along the highway in the direction in which the women were going, stopped their car so as to block the road, and at that point again cursed and abused them, and made indecent proposals to them; that, in their fright, the young women drove around the car in which the young men were riding, and went home by a circuitous route; that the defendant, on being told what had happened, procured his gun, and, accompanied by a young man named Bryant, went in search of a rural policeman for the purpose of have the Wards arrested before they crossed the State line into North Carolina; that on their way they were hailed or called by some one in a car parked by the roadside; that Strickland went to the parked car and found Kirby Ward, who immediately drew his pistol, and that the defendant shot him to save his own life.
The State proceeded on the theory, and offered testimony tending to show, that the defendant armed himself with a shotgun and went out in search of the young men who, he had been advised by his daughters, had insulted them, and, having found one of them, Kirby Ward, in a car parked by the roadside, deliberately shot him to death.
The appellant states a number of exceptions, but they are all without merit except the seventh, which I think should be sustained. That part of the Court's charge, objected to by this exception, that "the defendant did not have a right to seek out the deceased on account of some wrong done to members of his family," so narrowed and restricted his right to approach the deceased, in a peaceable manner, and with no intent to take the law into his own hands, for an explanation of the conduct of the deceased toward the defendant's daughters, as, under the issue made by the evidence, to vitally discount the plea of self-defense. I do not think that the language used by the Court in the same connection that "you have no right to take his life on that account" cured the error, or that the charge taken as a whole rendered it harmless. If the jury inferred from the language used, as they may reasonably have done, that the defendant had no right to approach the deceased even in a peaceable manner, to question him with regard to his conduct toward defendant's daughters, his plea of self-defense, under the facts disclosed by the evidence, was practically eliminated.
This opinion, written as a dissent from the opinion of Mr. Justice Cothran, being concurred in by the other Justices, becomes the judgment of the Court, which is that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and CARTER concur.
The defendant was tried for the alleged murder of one Kirby Ward, before his Honor, Judge Shipp, and a jury; the verdict was "guilty with recommendation to mercy." He has appealed upon exceptions which will be adverted to.
The evidence tends to establish the following facts, the circumstances attending the killing which is admitted by the defendant:
On a Sunday afternoon about 4 o'clock, the three daughters of the defendant, Strickland, accompanied by their aunt, were riding along a public highway in an automobile which belonged to the defendant. The brothers Kirby Ward (the deceased) and Onslow Ward, in an automobile, drove into the highway from a byroad, and ran into the rear of the Strickland car. Abusive language was used by them directed at the ladies in the car. They then, in an apparent effort to pass the Srickland car, ran into the side of it, and continued cursing and abusing the occupants. They then drove ahead of the Strickland car for a distance, and stopped their car, and grossly insulted the girls, threatening violence to them and their father, displaying pistols. The Strickland car was then driven around the Ward car, with considerable speed, by a circuitous route, to the Strickland home, where the aggravating circumstances were related to the father of the girls, the defendant. The girls were greatly excited, unnerved, and weeping. The defendant immediately went into the rear of his filling station, procured a shotgun (single barreled, it appears), placed it in his car, and, with a companion, set out for the rural policeman to have the Wards arrested. At about four miles from his home the defendant approached from the rear a car standing on the right-hand side of the road. It was the car of the Wards which had become disabled or out of gas and was parked by the roadside. The deceased was sitting in the car under the steering wheel. At this point the evidence for the respective parties sharply diverges. The defendant claims that he had not recognized the car as that of the Wards, and, as he approached it, the occupant gave indication that his car was in distress, and that he alighted from his car, while it was in motion, and carrying his gun, to render assistance; that he and the occupant recognized each other; that the deceased, who at that time was the only occupant of the Ward car, immediately with an insulting epithet, drew his pistol, and attempted to shoot; that he (the defendant) was then near enough to strike at the deceased with the muzzle of his gun, which exploded, the load passing through the left hand of the deceased and into his head, causing practically instant death.
The State contended that the evidence showed that the defendant was so incensed by the treatment of his daughters by the Wards that he armed himself, and left his home in his car with the purpose of finding the Wards and avenging the insults by slaying them; that, as he approached the parked car of the Wards, he recognized it, and leaped from his moving car, gun in hand, crossed the road, awoke the sleeping deceased with a prodding of the muzzle of his gun, stepped back, and fired into the defenseless man. There was evidence tending to show that there was on the face of the deceased a round wound or abrasion corresponding with the round muzzle of the gun.
His Honor, Judge Shipp, in a clear and comprehensive charge, presented every phase of the law to which the defendant could possibly have been entitled, most fairly, and with the evidence of a manly sympathy for the defendant under the exasperating circumstances.
It is tedious, but appears to be unavoidable, to consider the several exceptions.
Exception 1. This assigns error in the admission of new matter from witnesses in reply after the defense had closed. This is entirely within the discretion of the presiding Judge, and his ruling will not be disturbed, in the absence of a plain abuse of that discretion. There is nothing in the case to show such abuse.
Exception 2 and 3. The appellant complains of the following remark of the Solicitor to the jury in his address:
"I have never seen a stronger case of murder than borne out by the facts in this case."
Counsel for the defendant took exception to the remark, at the trial, but it does not appear that there was a request that a ruling thereon be made by the presiding Judge, and none was made.
I think it is at all times indecorous for a prosecuting officer to give his personal opinion as to the merits of the case, but, considering the fact that his whole address is based upon his analysis of the evidence and his conclusions therefrom, the naked expression of his opinion, in concrete form, is not reversible error, unless it be of the character referred to in the following extract from 16 C.J., 908:
"* * * It is generally held to be error for the prosecuting attorney in his argument to the jury, to declare his opinion or belief that defendant is guilty, in such a manner that the jury may understand such opinion to be based upon something which the prosecutor knows outside the evidence."
The remark was made, manifestly by its terms, as based upon the evidence in the case adduced upon the trial, and therefore does not come within the terms of the indicated inhibition.
In State v. Davis, 88 S.C. 229, 70 S.E., 811, 34 L.R.A. (N.S.), 295, the Court disapproves of such remarks, though declining in that case to reverse the conviction.
Exception 4. The Judge's charge was this:
"When a person sets up the plea of self-defense the burden is upon him to establish his plea by the greater weight or preponderance of the testimony. In the first place he must convince the jury by the greater weight of the testimony — he must satisfy the jury by the greater weight of the testimony that he was without fault in bringing on the difficulty; because the law would not allow him to go seek a difficulty, to bring it about and then shield himself under the plea of self-defense."
It is entirely free from any ground of objection.
Exception 5. This exception contains two separate and distinct propositions of law: (1) That if the deceased be shown to have been a man of violent and dangerous reputation, known to the defendant, more prompt and decisive measures of defense are justifiable on the part of the defendant than if he were of a peaceable disposition; (2) that it is not necessary for the defendant to retreat when to do so would increase or will not diminish his peril; that, if it should appear to the defendant, that the attack is made with a settled design and intention of taking his life and of doing him great bodily harm, and that ultimate safety cannot be secured by retreat, the defendant would be justified in advancing upon his assailant and slaying him, if the facts and circumstances were such that they would have induced the same state of mind in any other person of ordinary reason, firmness, and courage.
It would be a sufficient ground for dismissing this exception, that it violates Rule 4, Subd. 6, of this Court:
"Each exception must contain one proposition of law or fact which this Court is asked to review. * * *"
But, aside from this, his Honor, Judge Shipp, gave an entirely satisfactory reason for declining the request as a whole:
"He has asked me to charge you something on the facts. I charge you, Mr. Foreman, that you must try to place yourself in the situation of the defendant, under the same facts and circumstances, surrounding yourself by all the facts and circumstances. If there were any threats, you take that into consideration. A person has a right to act on circumstances from the way they appear to him at the time. You take into consideration all the facts and circumstances. On account of some expressions in the fourth request, I cannot charge it, because it would be a charge on the facts, and I have practically charged you what he asked me to charge you there."
Exception 6. I fail to perceive in what respect the charge excepted to was a charge upon the facts or in any wise indicated the impression which the evidence had created upon the mind of the presiding Judge.
Exception 7. I do not think that, taken in connection with the context and the charge as a whole, his Honor, the presiding Judge, intended to circumscribe the right or an individual who has suffered a wrong in his person or family, to call upon the wrongdoer for an explanation, and that, if he does so in a peaceable manner, with no intention of taking the law into his own hands, such approach will not militate against his right of self-defense. In fact there was nothing in the defendant's testimony which suggests any claim on the defendant's part that such was his intention in approaching the deceased; he either approached him, according to Bryant's testimony, to avenge the insults to his daughters, or, according to his own testimony, to assist a stranger in distress. Error should not be predicated as to an hypothesis not suggested by the defendant, or elsewhere in the evidence.
The specifications of error do not really raise this issue; they are plainly without merit.
Exception 8. The transcript shows that the request was allowed, in connection with the general charge, which was entirely proper.
Exception 9. The grounds of the motion for a new trial have been substantially disposed of.
The Court, as the presiding Judge was, is not unmindful of the great exasperation under which the defendant suffered by reason of the treatment received by his young daughters at the hands of the deceased and his brother; but such conduct was not, under the laws of this State, a capital offense or justified the defendant's assuming the role of executioner.
Finding no error of law in the proceedings of the Circuit Court, and being of the opinion that the verdict was not without evidence to sustain it, I think that the judgment of this Court should be that the judgment of the Circuit Court be affirmed.