State v. Amburgey

• Decision Date: 18 July 1945
• Docket Number: 15753.
• Parties: STATE v. AMBURGEY.
• Court: South Carolina Supreme Court

34 S.E.2d 779

206 S.C. 426

STATE v. AMBURGEY.

No. 15753.

Supreme Court of South Carolina

July 18, 1945

Price & Poag and J. Frank Eppes, all of Greenville, for appellant.

W A. Bull, Sol., of Greenville, for respondent.

FISHBURNE Justice.

On January 29, 1944, the defendant, J. N. Amburgey, shot and killed Robert Brown. The homicide was committed in a combination eating place and dance hall operated by the defendant on the Buncombe Road, about eighteen miles above the city of Greenville. Upon his trial for murder--the killing being undisputed--the issues were whether the defendant was guilty of murder or of manslaughter, or whether he killed in self-defense. From conviction and sentence for manslaughter the defendant appeals, alleging errors in the admission and exclusion of evidence, in the charge to the jury, and in the denial of his motion for a new trial.

For the purpose of showing that the deceased was of a violent and turbulent disposition, the defense offered the witness O. C. Cothran, who, when asked upon direct examination if he knew the general reputation of the deceased with respect to violence and turbulence, replied that he did know it, and that it was bad. On cross-examination by the solicitor, it developed that the witness knew the deceased as a bootlegger. Upon re-direct examination by counsel for the defense, the witness was asked if he had ever heard that Robert Brown, the deceased, had cut a man by the name of Clarence Burnett. Objection was promptly made by the solicitor to this evidence, upon the ground that it was improper to go into other specific instances of violence on the part of the deceased; and the Court sustained the objection.

Appellant contends that the solicitor in his examination opened the door to testimony with reference to specific incidents, and that the Court erred in excluding the question asked by defense counsel.

The rule has long been established in this State that evidence of other specific instances of violence on the part of the deceased are not admissible unless they were directed against the defendant, or, if directed against others, were so closely connected in point of time or occasion with the homicide as reasonably to indicate the state of mind of the deceased at the time of the homicide, or to probodily harm. State v. Hill, 129 S.C. 166, duce reasonable apprehension of great 123 S.E. 817, and cases cited therein.

The appellant, however, is in no position to complain. As soon as the witness Cothran was excused, the defendant obtained the very evidence he desired, from his witness Clarence Burnett. He stated upon direct examination that he knew nothing about the reputation of the deceased for turbulence and violence. Then, when asked if the deceased had ever cut him, he replied in the affirmative. Objection was made to this evidence on the ground that the defense had no right to go beyond proof of general reputation. The objection was sustained, but the jury heard the evidence, and the Court did not order it stricken out.

The second exception relates to a matter already referred to. When the solicitor brought out on cross-examination that the defense witness, O. C. Cothran, who was a deputy sheriff, had known the deceased as a bootlegger, he immediately requested the trial Judge to instruct the jury that the reputation of the deceased as to handling liquor had nothing to do with his reputation for turbulence and violence. The trial Judge ruled:

'I will leave it to the jury to say what the witness's testimony is; it is a matter for them to say what the witness says; but I will say to the jury that the point we are concerned with, the trait of character of the deceased, is peace and good order or turbulence and violence; and the handling or sale of liquor would not necessarily relate to that.'

It is argued that the trial Judge should have left this testimony to the jury as to whether or not it affected the reputation of the deceased. There is obviously no merit in this contention. Under the ruling of the Court, the question was to all intents and purposes, left to the jury as to whether or not it affected the reputation of the deceased. But we think under the facts as shown by the record, the trial Judge would have committed no error if he had held as a matter of law, that the evidence bearing upon the fact that the deceased had been a bootlegger, was irrelevant as to his reputation for turbulence and violence. 40 C.J.S., Homicide § 222(2), page 1141.

The next exceptions to be considered deal with alleged errors in the charge given to the jury.

After a most comprehensive general charge, soundly covering every element connected with the issues, the Court was requested by counsel for the defense and by the solicitor to give certain additional instructions to the jury. At the request of the solicitor, he gave the following charge:

'A homicide is not justifiable or excusable on the ground of self-defense by reason of a danger or apprehension of danger, of slight bodily injury, or of a mere indignity, or of a slight or moderate injury, such as that to be apprehended from a simple or ordinary assault or battery with the hand or fist without a weapon, unless the assault is accompanied by acts indicating imminent danger of serious bodily harm or felony and produces in the mind of accused a reasonable belief of such danger.' (Emphasis added.)

It is said that the portion of the instruction which is italicized constituted a charge upon the facts, and thereby invaded the province of the jury. Immediately following the above quoted charge, the trial Judge in his own language stated to the jury:

'In connection with that the jury should also, of course, consider the question of reasonably apparent danger; and you also consider my general charge as to the requirement that the defendant believed he was in imminent danger of losing his life or of suffering serious bodily harm, that is, the circumstances were such that the ordinary man of ordinary prudence and courage would have entertained that belief.'

There is evidently no foundation to this exception. The evidence shows without dispute that the appellant was armed with a pistol, and that the deceased had no weapon at all. According to the version of this affair given by the defendant, he was attacked by the deceased solely with his hands and fists.

Appellant contends that certain requests to charge submitted by the solicitor, and given by the trial Judge, were inconsistent with reference to the general charge given by the Court. A few illustrations with reference to this alleged confusion will show that there is no merit in the exceptions raising these questions.

The Court charged the State's fourth request, as follows:

'In order to justify or excuse a homicide in self-defense, the danger, whether real or apparent, must be impending and imminent; the danger must be actual, present and urgent, or such as the defendant believes on reasonable grounds to be so urgent and impending that it is necessary for him to kill in order to save himself from immediate death or serious bodily harm.'

The foregoing request was immediately followed by this further explanation:

'There is also to be taken into consideration the belief of the defendant and the belief justified under the circumstances in the mind of a man of ordinary prudence and courage. Also the law as to appearances.'

The Court charged the fifth request of the solicitor:

'The reasonableness of the defendant's apprehension is for the jury, and not the party charged, to be ascertained from the evidence and proper instructions of the court.'

The trial Judge immediately followed with this exposition of the law:

'In my general charge I stated to the jury that the defendant himself must believe he is in imminent danger; and I charge you also that not only the defendant but a person of ordinary prudence and courage must be justified in having such a belief as to the loss of life or sustaining serious bodily harm; and the law which I have given to you as acting upon appearances.'

It is inconceivable that the jury could have been in any way misled or confused as to the principles of law they should be guided by. The trial Judge again and again fully charged every element relating to the plea of self-defense. In charging the numerous requests submitted by counsel for the defense, these elements were again gone over, restated, and by their repetition re-emphasized.

The last issue presented by the appeal is whether the Court erred in refusing to grant a new trial based upon the ground that one of the jurors, W. B. Perry, who convicted the appellant, was not a qualified (registered) elector. In overruling the motion for a new trial, the trial Judge relied upon the decisions of this Court in the cases of State v. Gregory, 171 S.C. 535, 172 S.E. 692; and State v. Logue, 204 S.C. 171, 28 S.E.2d 788.

It is conceded that the juror, W. B. Perry, was not a registered elector. It appears that two men bearing this name and with these initials resided in Greenville County. One was a qualified elector, but the one actually summoned for jury service had never been registered. His lack of qualification in this respect did not become known until a jury was being selected during the same week of Court to try another defendant. The motion for a new trial was made after this incident, and after sentence had been pronounced upon the defendant.

In State v. Gregory, 171 S.C. 535, 172 S.E. 692, 695, this Court held:

'We are compelled, nevertheless, to hold that there was manifest error, so much as to amount to an error of law, and the wrongful exercise of the discretion committed to him under the law, in the holding of the circuit judge that due diligence was...