State v. Byrd

• Decision Date: 05 July 1905
• Parties: STATE v. BYRD et al.
• Court: South Carolina Supreme Court

51 S.E. 542

72 S.C. 104

STATE v. BYRD et al.

Supreme Court of South Carolina

July 5, 1905

Appeal from General Sessions Circuit Court of Greenville County Townsend, Judge.

Fletcher Byrd and Palmer Chriswell were indicted for murder. From sentence on verdict of guilty, defendants appeal. Affirmed.

Adam C Welborn, for appellants. J. E. Boggs and Asst. Atty. Gen Townsend, for the State.

WOODS J.

The defendants were convicted of the murder of William J. Cox and sentenced to be executed on July 1, 1904. By their appeal they first submit that the circuit judge erred in rejecting the jurors L. W. Watson and Guy L. Watson. The former, having married the second cousin of deceased, was related to him within the sixth degree by affinity, and was properly rejected. State v. Brock, 61 S.C. 141, 39 S.E. 359. Upon being examined on his voir dire, the juror Guy L. Watson said he had expressed or formed an opinion as to the guilt or innocence of the accused, but that it might be changed by evidence; that he was without prejudice, and he thought he could render a fair and impartial verdict. He married a fourth cousin of deceased. The finding by the circuit judge that the juror was not indifferent in the cause is not reviewable by this court, as it was not without evidence to support it. State v. Williamson, 65 S.C. 242, 43 S.E. 671; State v. Hayes, 69 S.C. 295, 48 S.E. 251.

The state offered evidence tending to prove these facts: William J. Cox, the deceased, was a magistrate. The defendants on the day of the homicide drove by his store in a buggy. B. M. Austin, at one time a dispensary constable, was at the store, and, seeing there was some article in the buggy covered with oilcloth, reached the conclusion it was contraband liquor. Thereupon he and Cox followed the defendants, and, after passing them in the road, turned back, intending to arrest them. They then discovered that the defendants had gotten out of the buggy and were standing behind it, each with a pistol in his hand. Austin drew his gun and ordered the defendants to throw up their hands. They complied with the demand, but Palmer Chriswell retreated about 30 yards, and then fired on Austin, who was following him. Austin, the only eyewitness examined, testified that while he was thus engaged with Chriswell he heard firing from the direction of the point where Cox had approached Fletcher Byrd, the other defendant, and there Cox was found shot to death. At the time of the attempted arrest the defendants were not told that Cox was an officer, but the defendant Fletcher Byrd subsequently stated to the witnesses Hughes and Gertrude Gillion that the shooting was with "spies," or dispensary constables. The evidence tended to show further that the defendants lived just across the Greenville line, in Laurens county, and were not unfamiliar with the country and its inhabitants. The defendants offered no testimony.

It is necessary to quote the first exception to the charge in full. It is that the circuit court erred "in not charging the jury that if they believe from the evidence that the deceased, William J. Cox, and D. M. Austin drove by the defendants, and across the road in front of them, drew a gun on them, ordered them to halt and surrender, had no warrant for their arrest, and never told the defendants they were officers of the law, the defendants would have the right to resist arrest, and that they would have the right to kill the assailants, or either of them, if necessary to save themselves from serious bodily harm or death." It might be sufficient to say that the circuit judge stated to the jury fully his views as to the limitations of the right of an officer to arrest without warrant, and was not requested to charge defendants' view of the law as stated in this exception. But the exception could not, in any view, be sustained, because, if the deceased had the right to make the arrest, the defendants could not justify resistance on the ground that he did not give them express notice at the time that he was an officer, if that fact was already known to them (State v. Williams, 36 S.C. 493, 15 S.E. 554); and there was, as we have seen, some evidence from which such knowledge might be inferred. But aside from this, the facts afford no basis for a charge as to the right of self-defense of those threatened with death or serious bodily harm. There is nothing in the evidence to suggest an intention of the deceased magistrate to do more than arrest the defendants, and, even if the attempted arrest was illegal, an illegal arrest is usually nothing more than a trespass, and does not excuse a homicide committed in resisting it, unless it appears that such killing was necessary in self-defense; that is, to prevent death or great bodily harm. 25 A. & E. Ency. Law (2d Ed.) 279, and authorities cited. As a general rule, it is the duty of an officer, in making an arrest, to state his official character and the cause of the arrest, exhibiting his warrant, if he has one; but the failure to take these precautions does not justify homicide or even physical resistance by the party arrested, without inquiry on his part as to the authority for his arrest. In State v. Anderson, 1 Hill, 327, 345, which is generally regarded as a case of great authority, a private citizen was killed while attempting to arrest Anderson, in this state, for a murder committed in Georgia. Judge O'Neall says: "The qualification to the general rule to which I have alluded is that where the party making the arrest inform the prisoner of their intention to arrest, or actually make it, and the prisoner makes no demand of the cause, it is not necessary to state it. After Col. Martin informed the prisoner that he and his party were there to arrest him, to avail himself of his want of knowledge of the cause of the intended arrest, he ought to have demanded it. His failure to do so, as well as the facts to which I have already adverted, deprive him of any benefit of this defense." The defendants knew they were actually engaged in the commission of a crime which subjected them to arrest without warrant by a magistrate or certain other officers mentioned in the dispensary law, and when they shot without inquiry they did so at their peril. In the Anderson Case, the court held the crime charged in Georgia was a felony justifying arrest in this state without warrant. The facts of the killing, which was there held to be murder, are strikingly like those adduced in this case, and the view of the court is conclusive of the question here made: "The prisoner's guilt in Georgia was, I think, fully proved by the witness Wheeler. The witness and Goodson were two...