Davis v. Collins

• Decision Date: 29 July 1904
• Citation: 48 S.E. 469,69 S.C. 460
• Parties: DAVIS v. COLLINS.
• Court: South Carolina Supreme Court

48 S.E. 469

69 S.C. 460

DAVIS v. COLLINS.

Supreme Court of South Carolina

July 29, 1904

Appeal from General Sessions Circuit Court of Spartanburg County Dantzler, Judge.

Action by Mabel H. Davis against J. D. Collins. From circuit judgment for plaintiff, defendant appeals. Affirmed.

Gary A. J., dissenting.

Evans & Frisbey and H. B. Carlisle, for appellant. Sanders & De Pass and Stanyarne Wilson, for appellee.

GARY A. J.

This is an action for damages arising out of an assault and battery upon the plaintiff by the defendant. The alleged wrong is thus set forth in paragraph 2 of the complaint: "That on Sunday, the 2d day of March, 1902, in the city of Spartanburg, at the depot of the Southern Railway Company in said city, while the plaintiff was quietly and peaceably standing at or near said depot, the defendant being there for an unlawful purpose, to wit, for the purpose of committing an assault and battery of at least a high and aggravated nature upon the person of one Clifford Gholdstein, with others aiding and abetting him in said unlawful purpose, did willfully, wantonly, maliciously, and unlawfully, while he and those who were with him were engaged in assaulting and beating, or attempting to assault and beat, the said Clifford Gholdstein, and without any cause or provocation whatsoever he and those who were with him aiding and abetting him in the unlawful purpose aforesaid, did strike, beat, and bruise the plaintiff, Mabel H. Davis, striking her upon the head and other portions of her body, felling her to the earth, causing her to faint and become unconscious, thereby rendering her sick and shocking her nervous system, and causing her to suffer great mental and bodily pain and anguish, and preventing her from attending to her household affairs and daily duties, to her damage in the sum of $6,000." The jury rendered a verdict in favor of the plaintiff for $1,000.

The first exception is as follows: "(1) In that the circuit judge erred in refusing to allow the witness Willie Brede to answer the following questions propounded to him by defendant's counsel: 'Q. When these gentlemen swear that the man who struck Mrs. Davis struck her with his fist, it could not have been Mr. Collins, could it?'--it being error, in that the witness had previously testified that Collins was standing near him, and beyond striking distance; and facts as he saw them and conclusions therefrom were competent testimony." The witness was not asked to give his opinion after stating the facts upon which it was founded, but the question necessarily required him to pass upon the credibility of other witnesses. Before stating his conclusion, it was necessary for him to determine what facts were established by the testimony of the other witnesses. The question was, therefore, incompetent. Furthermore, after his honor the presiding judge ruled that the question was incompetent, the appellant's attorney seemingly acquiesced in the ruling by saying, "That is all right, your honor." He also stated that the witness had answered the question.

The second exception is substantially the same as the first, and is disposed of by what was said in considering that exception.

The third exception is as follows: "(3) In that the circuit judge erred in refusing to allow defendant's counsel to introduce and read the depositions de bene esse of Miss Leila Coffee, a witness examined on behalf of defendant. Defendant had closed his case, the failure to introduce the same before that time being a mere oversight of counsel--the error being an abuse of the discretion vested in the trial judge." The record contains the following statement: "The reason given by counsel for the plaintiff for their objection to the introduction of the depositions at that stage of the case was that the witnesses whom they had had present in court for the purpose of meeting and contradicting that testimony had left the court, and could not again be produced, and that it would be unfair to allow the defendant to produce that testimony without an opportunity to plaintiff to reply; plaintiff having been prepared to meet it if it had been offered at the proper stage in the case." This exception cannot be sustained, as the introduction of the testimony at that stage of the trial was within the discretion of the circuit judge, and the appellant has failed to satisfy this court that there was an abuse of such discretion.

The fourth exception is as follows: "(4) In that the circuit judge erred in charging the jury as follows: 'Now, shock to her nervous system--shock to one's nervous system--may result from fright, and fright may result as the case may be. That is entirely for you to say, and may have resulted from a blow'--the error being a charge upon the facts, and in violation of the Constitution." The presiding judge did not charge the jury that the shock to the nervous system was the result of the blow in this case. It was not prejudicial error to charge that shock to the nervous system might be the result of a blow, for this is a fact as to which there is no reasonable ground for a difference of opinion.

The seventh exception is as follows: "(7) In that the circuit judge erred in charging the jury as follows: '(8) Where there has been a combat between two persons, and there has been sufficient time to cool, then the fact that there has been a previous combat is no excuse for either of the parties to renew such combat; and if there has been sufficient time to cool, and one does, out of a spirit of revenge, renew the difficulty, he is just as guilty of violating the law as he would be if there had been no previous combat, and there can be no mitigation of damages. That is to say, if the person has time to cool after the difficulty--plenty of time to cool--and renew the difficulty from a spirit of revenge, with a malicious spirit, then the fact that there had been a previous difficulty cannot be considered a mitigation of damages--the error being that it excluded the right of the jury to consider any fact in mitigation of damages from considering the irritating fact of a previous combat and sudden heat and passion, in violation of the law in this state." The charge is not in accord with the rule announced in Dean v. Horton, 2 McMul. 147, in which the court says: " The testimony was offered in mitigation. Inquiry was to be made into the motive of the defendant. The inducement to the transaction and all such particulars in the conduct of either party leading to the final act, or forming part of it, as seemed to show in what degree blame attached to them severally, were calculated to aid the jury in determining the just measure of retribution and punishment. A provocation seemingly slight may have exasperated patience, if it were a repetition of an offense before often given and endured; and resentment otherwise rash or preparation otherwise ferocious may be explained by the previous relation of the parties in former occurrences between them."

The respondent's attorneys, in their argument, thus state the questions raised by the remaining exceptions: "The jury must have clearly understood that his honor meant to tell them that if a blow was aimed maliciously at A., and struck B., the malice was in law as personal to B. as if aimed at B., so far as concerns assailant's liability to B. The fact that he did so charge is made the ground of several of defendant's exceptions." In other words, if the defendant, with malice, intended to commit an assault and battery upon Gholdstein, but unintentionally struck the plaintiff, the law imputes malice to the defendant in committing the assault and battery upon the plaintiff. There are felonies in which malice is a constituent element, and if, in such cases, a person attempts to commit the crime with a deadly weapon, and unintentionally kills another, the law imputes malice to the perpetrator, and the killing will be murder. State v. Smith, 2 Strob. 77, 47 Am. Dec 589. So, also, when a person attempts to commit suicide with a deadly weapon, and accidentally kills another, the law presumes malice, and he is guilty of murder. State v. Levelle, 34 S.C. 120, 13 S.E. 319, 27 Am. St. Rep. 799. This doctrine, however, is only applicable when the crime is malum in se, and not merely malum prohibitum. ...