State v. McKellar

Decision Date16 March 1910
Citation67 S.E. 314,85 S.C. 236
PartiesSTATE v. McKELLAR.
CourtSouth Carolina Supreme Court

Appeal from General Sessions Circuit Court of Greenwood County; R W. Memminger, Judge.

Dave McKellar was convicted of assault and battery with intent to kill, and carrying concealed weapons, and he appeals. Affirmed.

D. H Magill, for appellant. R. A. Cooper, Sol., for the State.

HYDRICK J.

Defendant was indicted for assault and battery with intent to kill, and carrying concealed weapons. Following is the substance of the testimony for the state:

C. F Franklin, the prosecutor: "I was coming from McCormick in my buggy. Met defendant and his brother. Dave walked out and said 'Whoa!' and as soon as he got behind the buggy, he shot. Don't know why he did it. My mule ran off. He shot twice more. He did not hit me, but hit my buggy. Just as he passed the buggy, he started in his pocket." Cross-examination: "I had my pistol. Deny firing at Dave. Had been drinking, but was not drunk. Told B. I was drinking. Told him when Dave came up and went to shooting, I didn't know whether he was shooting at me or not. I didn't see him shoot. When he went behind the buggy, he went to fumbling with his pocket--fumbling with his coat here (indicating). Didn't see any pistol."

C. L. Thurmond: "Live with Franklin. Took his mule but when he came home. Q. Just after you took it out, who came? A. Dave. Q. Did he have anything to kill him with, and where did he have it? Mr. Magill: I object to that. He is not charged with carrying an unlawful weapon any time, except at the time this alleged assault and battery was committed. The Court: This is to show malice, I suppose--evil intent. I think it is relevant on the issue, he is charged here with assault and battery with intent to kill. To show a man followed up another would go to show whether he had malice or not. The Solicitor: That is the purpose of the testimony." Witness answered: "He had a pistol in his pocket. He asked me where Franklin was, and said he came there to kill him."

The evidence for the defendant tended to prove self-defense.

The verdict was: "Guilty of assault with intent to kill. Guilty of carrying concealed weapons." The sentence was: "That the defendant, Dave McKellar, be confined at hard labor upon the public works of Greenwood county for assault and battery with intent to kill, for a period of two years, or in the state penitentiary for a like period of time at hard labor, and be confined upon the public works of Greenwood county at hard labor, or in the state penitentiary at hard labor, for one year for carrying concealed weapons, under the verdict in the within indictment."

The first exception is that his Honor erred in allowing the witness Thurmond to testify that defendant came to the prosecutor's house immediately after the difficulty, and said that he had come there to kill him, for the purpose of showing malice at the time of the difficulty. It was clearly admissible, as it tended to show the state of the defendant's mind toward the prosecutor, and, in connection with the evidence of the prosecutor, it tended to show that defendant was the aggressor in the difficulty. State v. Marks, 70 S.C. 448, 50 S.E. 14; State v. Smalls, 73 S.C. 516, 53 S.E. 976. The bare statement of the testimony for the state shows that this court cannot say there was error in refusing to direct a verdict of not guilty on the charge of carrying concealed weapons. The prosecutor said the defendant passed him, and he saw no pistol; that as be passed him, he went to "fumbling with his pocket--fumbling with his coat here (indicating)." The record does not disclose how the witness "indicated" or described the defendant's fumbling with his coat. It may have indicated the getting of a pistol from an inside coat pocket.

In defining the difference between assault and battery of a high and aggravated nature and assault and battery with intent to kill, the court charged: "An assault is an attempt to do violence to the person of another. That is a simple assault. Now, if that attempt is made with a weapon capable of inflicting serious bodily harm, such as a pistol--to fire at a man with a pistol--that would be an assault of a high and aggravated nature in the law, and if that were done with the intention of killing the man, it would be an assault with intent to kill. Now, as to what a man's intentions were you have to judge of that from the facts and circumstances of the case. You have to be satisfied, in order to find there was an intent to kill, that had the killing resulted, the death would have been murder. If the death would only have been manslaughter, as if done in sudden heat and passion upon sufficient legal provocation, the crime of assault with intent to kill would not be complete; it would only be assault of a high and aggravated nature." The exceptions impute error in the portion of the charge above set out, in that it eliminated the plea of self-defense, and authorized a conviction for shooting under such circumstances, even if done in self-defense. The charge is not susceptible of such a construction; for, immediately following the language above quoted, the law of self-defense was fully and...

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