State v. Milam

Decision Date14 March 1911
Citation70 S.E. 447,88 S.C. 127
PartiesSTATE v. MILAM.
CourtSouth Carolina Supreme Court

Appeal from General Sessions Circuit Court of Laurens County; Chas G. Dantzler, Judge.

Parrott Milam was convicted of assault and battery with intent to kill, and he appeals. Affirmed.

Richey & Richey, for appellant. Solicitor R. A. Cooper, for the State.

HYDRICK J.

The defendant was convicted of assault and battery with intent to kill W. M. Irby, and was sentenced to eight years' imprisonment at hard labor. He admitted shooting the prosecutor with a shotgun, and pleaded self-defense. Will Nelson, a witness for the state, was asked by defendant's attorney on cross-examination, if he had not told Mrs. Milam defendant's mother, that Irby, the prosecutor, had told him to keep his daughter away from Milam's house, that Parrott Milam was ruining her, and that Milam's house was no fit place for his daughter. The witness was allowed to answer the question, and his answer was "No." Mrs Milam, a witness for the defense, was asked if Nelson had not told her so--the purpose being to contradict Nelson. The court excluded the answer. The court also refused to allow the defendant to testify that, previous to the difficulty, he had heard that Irby had been talking about him and Nelson's daughter .

In State v. Sullivan, 43 S.C. 205, 21 S.E. 4, it was held that the testimony of a witness that deceased had said to him, a short time before the killing, that the prisoner was not fit to live in a civilized community, was properly excluded, because it did not amount to a threat, or necessarily show ill feeling on the part of the deceased toward the accused. In State v. Thraikill, 71 S.C. 136, 50 S.E. 551, it was held proper to exclude the testimony of a witness that deceased had told him, the day before the killing, that he (deceased) had taken a pistol from one of defendant's servants, that defendant had repeatedly sent for it, but that he did not intend that he should have it, because the declaration did not amount to a threat or necessarily show ill will. In State v. Gallman, 79 S.C. 229, 60 S.E. 682, it was held that evidence that deceased had, a short time before the killing, accused the prisoner of burning his (deceased's) barn was properly excluded, the accusation being unaccompanied by threats. It is clear that the declaration of Irby, if true, was not a threat, nor did it necessarily show ill will toward the defendant. It was therefore irrelevant and collateral to the issue, and could not afford ground of contradicting the witness Nelson. The rule is well settled that a witness cannot be discredited by contradicting him upon an irrelevant or collateral matter. State v. Wyse, 33 S.C. 592, 12 S.E. 556; State v. Adams, 49 S.C. 414, 27 S.E. 451; State v. Jones, 74 S.C. 456, 54 S.E. 1017.

Appellant complains because the jury were told that he was charged with assault and battery with intent to kill, when, in fact, he was charged with assault and battery with intent to kill and murder; the impression being thereby made upon the jury that he was charged with an offense less serious than that contained in the indictment upon which he was convicted.

There can be no doubt that assault and battery with intent to kill and murder is a more serious offense than assault and battery with intent to kill, because in the former, if death ensues, the perpetrator is guilty of murder, while in the latter, he may be guilty of manslaughter only, since it may be done in sudden heat and passion upon sufficient legal provocation. But there is no difference between an assault and battery with intent to kill and murder, and an assault and battery with intent to kill, committed with malice. In the latter, the word "malice" supplies the place of the word "murder" in the former; malice being necessary to make the act murder, if death ensues. After stating the charge against defendant, the court proceeded to define the offense charged and to differentiate it from aggravated assault and battery in the following language: ...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT