72 S.E. 224 (S.C. 1911), Farmer v. Sellers

Citation:72 S.E. 224, 89 S.C. 492
Opinion Judge:WOODS, J.
Attorney:Nelson, Nelson & Gettys and Frank G. Tompkins, for appellant. J. E. McDonald, J. K. Henry, and Christie Benet, for respondent.
Case Date:October 02, 1911
Court:Supreme Court of South Carolina

Page 224

72 S.E. 224 (S.C. 1911)

89 S.C. 492




Supreme Court of South Carolina

October 2, 1911

Appeal from Common Pleas Circuit Court of Richland County; S.W. G. Shipp, Judge.

Action by May W. Farmer against Wade H. Sellers. From a judgment for plaintiff, defendant appeals. Affirmed.

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Nelson, Nelson & Gettys and Frank G. Tompkins, for appellant. J. E. McDonald, J. K. Henry, and Christie Benet, for respondent.


On the 22d day of February, 1908, in the city of Columbia, the defendant, Wade H. Sellers, shot to death James P. Farmer. The plaintiff, May W. Farmer, the widow of James P. Farmer, having administered on his estate, recovered a judgment of $5,000 for the benefit of herself and his children against the defendant under the allegation that the homicide was committed "unlawfully, willfully, wantonly, recklessly, and maliciously." The defenses set up in the answer were, first, a general denial; second, that the defendant shot Farmer in the protection of his dwelling; third, self-defense; and, fourth, that the defendant had been tried for the murder of Farmer and had been acquitted. The exceptions relate to the second and third defenses.

The material undisputed facts are that early in the morning of February 22, 1908, Farmer went to defendant's dwelling, and as a dispensary constable several times demanded admittance for the purpose of searching the house for contraband liquor. The defendant bolted the doors and refused [89 S.C. 495] to open them. Farmer called to his assistance Policeman Nettles, who carne up in the piazza, and then with a pistol in one hand forced open the door, and was shot to death by the defendant with a rifle. The plaintiff introduced evidence tending to prove that, before forcing an entrance, Farmer read to defendant a search warrant issued by Magistrate Fowles on January 4, 1908, authorizing and directing the sheriff or any constable to search the premises for a lot of contraband liquor, and that he broke open the door with the warrant in one hand and his pistol in the other only after solicitation had proved unavailing. The plaintiff introduced also documents signed by the Governor purporting to appoint Farmer a constable under the dispensary laws of the state. The defendant testified that he recognized Farmer as a dispensary constable, but denied that the search warrant was presented or read to him. He testified, further, that he told Farmer he would be admitted and could search the house as soon as the women in the house could dress, so that he could be admitted to their apartment, and that he shot when Farmer refused to wait, broke open the door, and pointed at him with his pistol. The substantial issues on the trial were: First. Was Farmer an officer whose authority to execute a search warrant the defendant was bound to respect or a mere trespasser? Second. Was Farmer's entrance into defendant's house under a search warrant which defendant was bound to respect, or was the paper a nullity? Third. Assuming Farmer to have been a mere trespasser, was it necessary for the defendant to kill him in self-defense or in the protection of his dwelling house? By objections to evidence and by requests to charge, the defendant asked the circuit judge to lay down as the law the utterly untenable proposition that the defendant could treat Farmer as a mere intruder in the office of constable and a bald trespasser on his premises because of certain alleged irregularities in his appointment [89 S.C. 496] and qualification as a constable. Section 38 of the dispensary statute of 1907 provided: "It shall be the duty of the sheriffs and their deputies, magistrates, constables, rural police, city and town officials, to enforce the provisions of this act. If they fail to do so, it is hereby made the duty of the governor to enforce the same, and he is hereby authorized to appoint such deputies, constables, and detectives as may be necessary." 25 Stat. 477. Under this law his excellency, the Governor, on December 22, 1907, issued a commission to Farmer as a constable,

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signed by the Governor and the Secretary of State, and sealed with the great seal of the state. This commission being by its terms limited to 30 days, the Governor on January 3, 1908, over his own signature alone, reappointed Farmer for 30 days, and again on February 6, 1908, in the same manner, reappointed him for another period of 30 days. If these appointments were valid, then Farmer held a legal appointment on February 22, 1908, the day of the homicide. The point is not made that a commission was necessary to the validity of the appointment; but the objection is that there was no official bond of Farmer in force at the date of the homicide.

The court expressly decided in State v. Messervy, 86 S.C. 503, 68 S.E. 766, that constables appointed by the Governor under the act of 1907, above quoted, were not required to give bond, and that, even if they were, one holding the appointment of the Governor without giving the bond must be respected as a de facto officer. As against the objections made by the defendant, Farmer was a de jure officer entitled to exercise the powers of a dispensary constable.

Respondent's argument embraces the point that the appointment of Farmer by the Governor was sufficient to clothe him with authority as a dispensary constable without a formal commission, but we pass that by because it is not made by the exceptions.

It is obvious that no special appointment of Farmer by the magistrate was necessary. Section 22 of the act of 1907 [89 S.C. 497] (25 Stat. 472) provides that the search warrant shall empower "any officer or person who may be deputized" to make the search. Farmer,...

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