State v. Ashley

• Decision Date: 05 July 1922
• Docket Number: 10919.
• Citation: 113 S.E. 305,121 S.C. 15
• Parties: STATE v. ASHLEY.
• Court: South Carolina Supreme Court

113 S.E. 305

121 S.C. 15

STATE v. ASHLEY.

No. 10919.

Supreme Court of South Carolina

July 5, 1922

Appeal from General Sessions Circuit Court of Anderson County; Geo E. Prince, Judge.

Ernest Ashley was convicted of manslaughter, and he appeals. Reversed, and new trial granted.

Greene & Earle and Watkins & Prince, all of Anderson, and F. B Grier, of Greenwood, for appellant.

L. W Harris, Sol., and Bonham & Allen, all of Anderson, and Bonham & Price, of Greenville, for the State.

GARY C.J.

The following statement appears in the record:

"At the May term, 1921, of the court of general sessions for Anderson county, the defendant was tried upon an indictment, charging him with the murder of Arthur Hughes. After the jury was drawn in this case his honor stated that of his own motion he proposed to keep the jury together, and in charge of the sheriff, through duly appointed bailiffs, during and until the conclusion of the trial of the case. This was done and the jury placed in charge of two bailiffs, who were instructed to keep them together, and not allow them to talk to any one about the case, or discuss it with any one, nor permit it to be discussed in their hearing. The stenographer's report of the trial is as follows:

The state produced several witnesses who testified that on the 24th day of August, 1920, a campaign meeting was held in the town of Honea Path, in Anderson county, S. C., and that the deceased, Arthur Hughes, was acting as peace officer on that day; that after the campaign meeting had ended a crowd of people gathered on the sidewalk in front of Donald Drug Company's store, where some men were engaged in friendly scuffling; that the deceased walked into the crowd of men, and was lifted off the ground by one Willie Moore, who asked him something about scuffling; that the deceased replied that he didn't care to scuffle and about that time the defendant, Ernest Ashley, spoke to the deceased in a threatening manner; that the deceased thereupon made a few steps across the sidewalk and handed his pistol to George Page, the chief of police of the town of Honea Path; that after he had handed his pistol to Page, and while he was turning around towards the crowd, the defendant, Ernest Ashley, fired on him, inflicting upon him two wounds, which, according to the testimony of the doctors, caused the death of the said Arthur Hughes. The state also produced witnesses to testify that they had heard the defendant, Ernest Ashley, make threats against the deceased.

The defendant, Ernest Ashley, and several witnesses produced by him, testified that he was in the crowd of men in front of Donald Drug Company's store where some people were engaged in friendly scuffling; that the deceased, Arthur Hughes, came into the crowd of men when the scuffling was going on, and was lifted off the ground by one Willie Moore; that when the said Willie Moore let him loose the said Arthur Hughes shoved the defendant back with his left hand, saying, 'What in the hell you got to do with it; you think you are a damn bully;' that immediately after using these words the said Arthur Hughes drew his pistol, and was in the act of firing upon defendant, when defendant opened fire upon Hughes, who fell to the sidewalk, his pistol dropping at his side, where it was picked up by George Page, chief of police. Defendant testified that he did not draw his pistol and fire upon Hughes until he saw Hughes drawing his pistol, and until he (defendant) believed that his life was in imminent danger, and that it was necessary for him to shoot Hughes to save his own life, and that he shot the said Hughes in the defense of his own life. Defendant denied that he had ever made any threats against the said Arthur Hughes, and testified that he had on that morning received a communication of a threat made by Hughes against defendant's life. The defendant produced a witness who testified that Hughes had made a threat that morning against the defendant, and that he (the witness) had communicated the threat to defendant on the morning before the shooting took place."

The jury found the defendant guilty of manslaughter, and he was sentenced by the court to serve 10 years at hard labor in the state penitentiary or upon the public works of Anderson county, whereupon he appealed to this court.

Rule 5, § 6, of this court (90 S.E. vii), contains the provision that--

"Each exception must contain a concise statement of one proposition of law or fact which this court is asked to review, and the same assignment of error should not be repeated. Each exception must contain, within itself, a complete assignment of error. * * * The exceptions should not be long or argumentative in form."

The exceptions herein do not comform to this requirement. While we will not enforce the rule herein, as this is a capital case, nevertheless we will adopt our own arrangement in discussing the questions presented by the exceptions.

The following statement appears in the record:

"At some hour during the night, while the jury were out and before reaching a verdict, the foreman, Mr. A. M. McFall, went to a telephone, not in the courtroom and not in the juryroom, but in the office of Mr. J. Mack King, county supervisor of Anderson county, on the same floor and across the hallway from the courtroom, and called up his honor, the presiding judge, on the telephone for the purpose of discussing with his honor the case under consideration by the jury. A conversation took place at that time over the telephone between the foreman of the jury and his honor, Judge Prince. The following is a statement furnished by Judge Prince as his recollection of this conversation: 'On the night when the jury was considering the case of the state against Ernest Ashley, I was called to the phone and was told that the man at the phone was McFall. On inquiry as to which McFall, he said he was foreman of the jury and the jury couldn't agree; that 11 of them were for murder with recommendation to mercy and

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