State v. McKellar
Decision Date | 16 March 1910 |
Citation | 67 S.E. 314,85 S.C. 236 |
Parties | STATE v. McKELLAR. |
Court | South 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.
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: Cross-examination:
C. L. Thurmond: . Witness answered:
The evidence for the defendant tended to prove self-defense.
The verdict was: 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: 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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