Legette v. Smith, 16951

• Decision Date: 12 January 1955
• Docket Number: No. 16951,16951
• Citation: 226 S.C. 403,85 S.E.2d 576
• Parties: Henry LEGETTE, Jr., by g/a/l and Worthie Newell, Adm'r, Respondents, v. Earl L. SMITH, Appellant.
• Court: South Carolina Supreme Court

Page 576

85 S.E.2d 576

226 S.C. 403

Henry LEGETTE, Jr., by g/a/l and Worthie Newell, Adm'r, Respondents, v. Earl L. SMITH, Appellant.

No. 16951.

Supreme Court of South Carolina.

Jan. 12, 1955.

J. Malcolm McLendon, Marion, for appellant.

James B. Dixon, Marion, for respondents.

LEGGE, Justice.

On May 9, 1951, Edna N. Smith was shot and killed by her husband, Earl L. Smith. This action was brought by Henry Legette, Jr., her son by a former marriage, and Worthie Newell, as administrator of her estate, the complaint alleging that the homicide was unlawful, wrongful, intentional, felonious and malicious; that she had died intestate, survived by her said son and her said husband; that in consequence of the unlawful homicide, whether murder or voluntary manslaughter, her husband was debarred of inheritance from her, and therefore all of her estate, after payment of debts and proper charges against the same, became the property of her said son; and praying for a declaratory judgment to that effect. Earl L. Smith answered, denying that he had unlawfully killed his wife, claiming his right to inherit as one of her heirs, and praying for a declaratory judgment in his favor and that all issues of fact in the case be determined by trial by jury. He also moved for dismissal of the complaint upon the ground that he had been tried in the Court of General Sessions for Marion County for the alleged unlawful homicide, and had been acquitted thereof, and that under the provisions of Section 19-5 of the 1952 Code of Laws only one who has been convicted of unlawfully killing another is barred from inheritance from the person so killed. The motion was refused under authority of Smith v. Todd, 155 S.C. 323, 152 S.E. 506, 70 A.L.R.1529, and Keels v. Atlantic Coast Line R. Co., 159 S.C. 520, 157 S.E. 834. The case was tried at the May, 1953, term of the Court of Common Pleas for Marion County, before the Honorable G. Badger Baker, Presiding Judge, and a jury. At the close of the testimony, the presiding judge, having refused to direct a verdict for the plaintiffs, submitted the case to the jury, which found for the defendant. Thereafter he granted plaintiffs' motion for judgment non obstante veredicto, holding that the only reasonable inference from all the evidence was that the defendant had unlawfully killed his wife and that he was therefore barred of inheritance from her.

The trial judge properly refused appellant's motion to dismiss the complaint, and the exceptions in that regard are overruled. Section 19-5 of the 1952 Code provides that 'No person who shall be convicted in any court of competent jurisdiction of unlawfully killing another person shall receive any benefit from the death of the person unlawfully killed, except in cases of involuntary manslaughter, whether by way of intestate succession, will, vested or contingent remainder, insurance or otherwise. * * *' In Smith v. Todd, supra, where it was alleged that the husband had feloniously shot and killed his wife and then immediately committed suicide by shooting himself, this court, on appeal from an order sustaining a demurrer to the complaint, held that the statute did not abrogate the common law rule barring a beneficiary under a policy of life insurance who had unlawfully and feloniously killed the insured from taking thereunder, and that it merely extended and supplemented the common law rule by making the fact of such conviction sufficient of itself to establish the legal status of the person so convicted with respect of receiving 'any benefit from the death of the person unlawfully killed'. This construction of the statute was confirmed in Keels v. Atlantic Coast Line R. Co., supra [159 S.C. 520, 157 S.E. 835], where it was held that the fact that a wife who had killed her husband had been convicted of involuntary manslaughter did not conclusively establish her right to the proceeds of an employees' relief fund to which he had contributed and of which she had been designated beneficiary, and that the judgment roll showing her conviction was inadmissible in evidence. To quote from the opinion in that case:

'Under the common-law rule, with regard to such benefits, a beneficiary who may have been convicted of murder or voluntary manslaughter is not bound by his conviction, but the question of his guilt or innocence, when involved in a civil action to which the rule is applicable, still remains to be determined in the trial of such civil action; under the provisions of the statute, the conviction, itself, in a court of competent jurisdiction, of murder or voluntary manslaughter, is the determining factor in a civil action to which the statute is applicable, the necessity of establishing guilt in such civil action by evidence dehors the record of conviction being thus obviated. Further than this the statute does not go. Neither expressly, nor by implication, does it permit one who has been acquitted in a court of competent jurisdiction, on a charge of unlawful killing, to show such acquittal in the trial of a civil case in which his guilt or innocence may be a question at issue; in like manner, it does not allow one who on such charge has been convicted of involuntary manslaughter only to show that fact in such a civil trial--in other words, in these respects it confers no privilege which did not obtain under the common law.'

The statute has no application in the present case, appellant having been acquitted.

There is no substantial dispute as to the physical facts. Appellant and his wife, Edna, and the respondent Henry Legette, Jr., her son by a former marriage, lived at the home of her father, a mile and a half west of the town of Marion. She operated an establishment nearby known as Edna's Place, where groceries, cigarettes, candy and liquor were sold. Appellant, who had suspected one Julian Graham of being too intimate with her, had about two weeks before the fatal shooting found Graham in a cafe in Marion, called him outside, and told him to stay away from Edna's Place. Appellant testified: 'I told him to stay away from out there, that he had a good wife and to leave my wife alone.' On the night of May 9, 1951, about 11:30 o'clock, appellant, suspending that Graham was there, entered Edna's Place through a bedroom window at the rear, and, walking through the hall into the front room, saw Graham there and immediately opened fire with a six-shooter, which he emptied. According to appellant's testimony: 'Whenever I came down the hall, he (Graham) was sitting on the counter, and Edna was standing between his legs'. According to Graham's testimony he was sitting on the counter with a man named Shelley, and Mrs. Smith was 'somewhere near the front door, near the middle of the room'. To quote further from appellant's testimony 'Q. Were you shooting at Mr. Graham? A. Yes, sir.

* * *

* * *

'Q. Were you shooting at Mrs. Smith that night? A. No, I was shooting at Graham.

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'Q. You didn't care whether you hit her or not? A. I don't know what happened after I started shooting.

'Q. If she was in your line of fire, you had to shoot her if you shot him? A. I meant to kill Graham.

'Q. Did you mean to kill her? A. No, sir.

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'Q. You do admit you meant to kill Graham? A. I did.'

Graham testified that he didn't see Smith until after the first shot had been fired; that that shot had struck him, and he then saw Smith in the room, near the rear wall; and further:

'Q. After this shot was fired, did you notice the deceased, Mrs. Smith, do anything? A. She ran from where she was near that front door, she ran towards Mr. Smith.

'Q. Did you hear her make any statement to him? A. I don't recall the exact statement. She said: 'Stop! Stop! Don't Shoot!"

Graham, badly wounded in several places, ran out of the house, followed by Smith, who continued to attack him after he had fallen to the ground. Edna Smith, in addition to receiving a wound on each hand, was struck on the right side by a bullet which passed through both lungs, causing her death.

The trial judge set aside the verdict in favor of appellant and decreed that he be debarred from inheriting from his wife not because he had actually intended to kill her, but because the evidence warranted no reasonable inference other than that her death had been occasioned in the course of his commission of an unlawful act, namely his attempt to kill Graham, which was without legal justification or excuse. Fully agreeing with the trial judge that the evidence showed conclusively that appellant was engaged in the commission of an unlawful act and that the death of his wife so occasioned would have warranted his conviction of murder or voluntary manslaughter on the criminal side of the court, we are not in agreement with his conclusion that this fact alone requires that appellant be debarred of inheritance from his wife.

In the annotation following the report of Smith v. Todd, supra, in 70 A.L.R. at pages 1539 et seq., will be found an exhaustive review of the American and English decisions dealing with the issue of forfeiture of the rights of a benefiary under a policy of life insurance by reason of his having feloniously killed the insured. See also the annotation on this subject in 91 A.L.R. 1486. And in the annotation in 139 A.L.R. at pages 501 et seq. the issue of forfeiture of a murderer's inheritance from the person whom he has slain is fully explored. Among the decisions there mentioned is Price v. Hitaffer, 164 Md. 505, 165 A. 470, where it was held that neither the husband nor his next of kin, where the former had murdered his wife and then committed suicide, could share in her estate under a statute of distribution not expressly excluding a husband from inheriting from the wife whom he had murdered. In that case it was stated that, the case being one of first impression, the court was at liberty to adopt either of the two existing views, the one which it adopted being that the old...