,74 Am.St.Rep. 707, State v. Summer

• Decision Date: 18 April 1899
• Citation: 32 S.E. 771,55 S.C. 32
• Parties: STATE v. SUMMER.
• Court: South Carolina Supreme Court

32 S.E. 771

55 S.C. 32

STATE v. SUMMER.

Supreme Court of South Carolina

April 18, 1899

Pope J., dissenting.

Appeal from general sessions circuit court of Lexington county; D A. Townsend, Judge. Charles C. Summer was convicted of murder, and he appeals. Affirmed.

Johnstone Welch & Wingard, for appellant.

J. W Thurmond and Efird & Dreher, for the State.

POPE J.

The defendant, having been convicted of murder, with a recommendation to mercy, and having been duly sentenced, now appeals from the judgment of the court. We will now pass upon these grounds of appeal, 11 in number, in their order.

"(1) Because his honor, the presiding judge, erred in charging the jury as follows: 'A reasonable doubt is a strong doubt, based on the testimony."' The language of the presiding judge in this connection was: "The state is bound to make out its case beyond a reasonable doubt; that is, before you can convict you must be satisfied beyond a reasonable doubt that the defendant is guilty,--'beyond a reasonable doubt,' remember the words. If there is a reasonable doubt in the mind of any juror you cannot convict. That is the rule that governs the state. A reasonable doubt is a strong doubt, based on the testimony, not on some imaginary matter outside." This court in the case of State v. Coleman, 20 S.C. 455, used this language: "We know of no law or practice which would permit this court to hold a circuit judge in error for charging a jury, *** or for instructing them, that the phrase 'a reasonable doubt,' used in the books, means a 'serious, well-founded, substantial doubt."' And in the case of State v. Senn, 32 S.C. at page 404, 11 S.E. 295, this court said: "It cannot be necessary to do more than repeat what this court said in State v. Coleman, 20 S.C. 455, that 'we know of no law or practice which would permit us to hold a circuit judge in error for instructing a jury that the phrase "reasonable doubt," used in the books, means a "serious, well-founded, substantial doubt."' Substitute the word 'strong' for that of serious,' and the cases are identical." This exception, upon the authority of the cases just cited, must be overruled.

"(2) Because the presiding judge erred in charging the jury as follows: 'The law would say you cannot place your enemy, antagonist, or fellow being,--can't surround him,--with such circumstances which you knew he would resent, and then mention it to him,--bring it up to him,--to make him fight, just to get to kill him under circumstances which might appear to be sudden and unexpected. The law says you cannot do that."' While the circuit judge was discussing the crime of manslaughter, after a very careful delineation of the principles of the law governing this phase of homicide, he, rather by way of summing up the law, said: "You see, then, manslaughter is killing without malice, but if the killing was done under circumstances which showed that previous criminal intention existed to bring about the fight, and to get to kill his assailant, the law would say that was murder; you brought that about,"--and then immediately follows the language embodied in this exception. And the charge of the judge on this point has this language, as a part of the paragraph of his charge set out in this exception: "If, although the fight might be sudden, yet it appears that there was a predetermination on the part of the slayer to bring it about, then, if he kills, it is murder, and not manslaughter." The language of the charge sets forth sound, wholesome law so clearly that the jury was obliged to see its force, and, too, it was not subject to any legal objection by the defendant. This exception is overruled.

"(3) Because in charging the jury with respect to manslaughter as being a killing under sudden heat and passion, upon sufficient legal provocation and without time to cool, the presiding judge, in using this language, 'because some people don't cool, and some don't want to cool,' conveyed to the jury the impression made upon his honor's mind by the testimony in the case, and thereby committed an error of law." We cannot agree with the appellant in this exception to the charge of the presiding judge. The language set out in the exception is only a part of what the judge charged in this connection. By reference to the charge, we see the judge was most earnestly endeavoring to bring home to the minds of the jury what manslaughter was. Among other things, he said: "Manslaughter is the unlawful killing of a human being, in sudden heat and passion, upon sufficient legal provocation. Sufficient for what? Sufficient to create that sudden heat and passion. Then you say, 'To what extent does the sudden heat and passion go?' It must go to that extent that the reason is partially or entirely dethroned, the man is not himself, and if he kills, then, for that provocation, and not for some past provocation, if he slays his fellow being just then for that provocation, and not to punish him for something else gone before, and while in that heat and passion, and before he cooled, or had time to cool,--because some people don't cool,--and some people don't want to cool,--therefore the law says, if there is legal provocation, and it is sufficient to create such a great heat and passion that reason is partially or entirely dethroned, the man is not himself, and he slays his fellow man before he cooled or had time to cool,--and you must be the judges of that,--and for that provocation, then the law says, 'I am so mindful of the weakness of human nature that I will not call such killing as that murder; I will call it manslaughter."' We are unable to see how the language used could prejudice the minds of the jurors against the prisoner. The constitution requires the circuit judge to declare the law. In doing so, he cannot state the testimony. The circuit judge did not mention, directly or indirectly, any part of the testimony. He has declared the law faithfully. The exception is overruled.

"(4) Because the presiding judge erred in charging the jury as follows: 'If there is any reasonable, safe way to escape, the law says he [the defendant] ought to do it, and not take the life of his fellow man."' The extract is part of a paragraph of the charge. The circuit judge had analyzed the defense and showed in what it consisted. Near the close of the analysis of the law, he said: "The right of self-defense is recognized by the law. A man's duty is to defend himself, and he is not bound to endanger himself by retreating; but, if there is any reasonable safe way of escape, the law says he ought to do that, and not take the life of his fellow man. I don't mean by that he has got to go away from the place because his adversary is there. He is not bound to turn out of his way. But, after the immediate conflict is commenced, it is his duty to retreat from it; avoid taking a man's life; to retire, if he can do so safely, but not bound to do so otherwise, because he has the right to defend himself." We must overrule this exception. See State v. Trammell, 40 S.C. 331, 18 S.E. 940.

"(5) Because the presiding judge erred in charging the jury upon the facts as follows: 'You must consider that matter,--consider the meeting of these parties'; thereby intimating to the jury the conclusion of his honor that these parties did meet, and that a matter did take place between them." In his charge to the jury the presiding judge did say: "You must consider the matter,--consider the meeting of these parties. It is claimed they met and had a fight. I cannot say they had a fight. I cannot say they had any trouble at all. It is claimed by the state there was trouble. I gather from the argument and indictment there was trouble. I cannot allude to the testimony. Now, under what circumstances did they meet?" We do not understand, from the trend of the prosecution or defense, as developed in the "case" for appeal, that there was any difficulty as to the time or place of the meeting of the accused and the deceased on the fateful Sunday afternoon when the tragedy occurred. While the provision of the constitution is mandatory upon circuit judges, wherein stating the testimony by them is forbidden, yet there must be some occasion for the provision of the constitution to apply before we can speak in condemnation. Here the circuit judge disowns any reference to the testimony as the basis of his remark to the jury which is complained of. On the contrary, he speaks of it as based upon the arguments and the indictment. If error, it was harmless. The fifth exception is overruled.

"(6) Because the presiding judge erred in overruling the defendant's objection, and holding as competent and relevant the testimony of the witness J. H. Shell, detailing certain declarations of the deceased in regard to the fight made in the absence of the defendant." This exception must be overruled, for it is founded on an unintentional oversight by the appellant of the testimony of the witness Shell: "Witness: Mr. Murdock come to me, and submitted himself. Mr. Johnstone: In the absence of this defendant, it is not competent,--cannot bind this defendant. Solicitor: We are not proving statements; but we can prove whether he surrendered himself, and what--The Court: You can prove what he did, but not what he said. Witness: He did surrendered himself to me." The "case" for appeal discloses that the counsel for the appellant had brought out in the cross-examination of this witness, Shell, that the deceased had had, on the day before he was killed, a difficulty with two brothers of the accused; and the witness, being the intendant of the town of Peak, where both difficulties took place, was questioned very closely as to his reasons for not arresting the deceased on Saturday, when the first difficulty...