State v. Shaw

• Citation: 64 S. C. 566,43 S.E. 14
• Parties: STATE. v. SHAW.
• Decision Date: 13 December 1902
• Court: United States State Supreme Court of South Carolina

43 S.E. 14

64 S. C. 566

STATE.

v.SHAW.

Supreme Court of South Carolina.

Dec 13, 1902.

CRIMINAL LAW—APPEAL—NEW TRIAL-MURDER.

1. The supreme court has power to grant a new trial on a conviction for crime, where there is no evidence to support the verdict, and an appeal is taken from the order denying the new trial on that ground.

2. Where a master standing in loco parentis chastises a hoy in his employ in such an immoderate and excessive manner that the boy dies therefrom, a verdict of the jury that the chastiser intended to take the life of the boy, and finding him guilty of murder, will not be disturbed.

Appeal from general sessions circuit court of Sumter county; Klugh, Judge.

Indictment against Nelson J. Shaw for murder. From judgment on verdict of guilty with recommendation to mercy, defendant appeals. Affirmed.

Lee & Moise, for appellant.

John S. Wilson, for the State.

GARY, A. J. The record contains the following statement of facts: "The defendant (appellant) was indicted for the murder of Nathaniel Williams, a boy in his employ as a servant, whose death he caused by whipping him. He was tried before his honor Judge J. C. Klugh and a jury, at Sumter, at the June term, 1902, of the court of general sessions. The state put in evidence the small leather strap with which the whipping was done, —a proper instrument for chastisement; but the contention on the part of the state was that the whipping was cruel, Immoderate, and excessive, causing the death of the boy, and hence that the defendant was guilty of murder. The deceased was a stout-built boy, aged about 12 or 13 years, bright and intelligent, and in good health. He was at the time of his death, and had been for four or five years prior thereto, in the employ and service of the defendant, working for and waiting upon him about his dwelling and store, and clerking for him occasionally. The whipping occurred on Saturday, November 9, 1901, for a petty theft committed on the previous Thursday. The defendant's defense was the plea of not guilty; that the chastisement was moderate and proper, and that the boy's death was wholly unintentional, and through misfortune; that at most It was a case of manslaughter. The jury found the prisoner guilty of murder, with a recommendation to mercy. Defendant's counsel moved before his honor upon the minutes for a new trial upon the ground that the verdict of the jury was not warranted by the evidence; that there was absolutely no evidence of murder or malicious homicide in the case to sustain the verdict; that, the defendant having the lawful right to inflict moderate chastisement, if he inflicted the same, and death ensued, it was at most manslaughter, and not murder; and hence that the conviction was illegal, and the verdict should be set aside. After hearing argument from the defendant's counsel, the presiding judge overruled the motion, and sentenced the prisoner to imprisonment for life in the state penitentiary. Due and timely notice of intention to appeal to the supreme court was served upon the solicitor."

The following are the appellant's exceptions: "(1) For that his honor the presiding judge erred, as matter of law, it is respectfully submitted, in...