State v. Banister

• Court: South Carolina Supreme Court
• Writing for the Court: McIVER, C.J.
• Citation: State v. Banister, 35 S.C. 290, 14 S.E. 678 (S.C. 1892)
• Decision Date: 16 February 1892
• Parties: STATE v. BANISTER.

14 S.E. 678

35 S.C. 290

STATE v. BANISTER.

Supreme Court of South Carolina

February 16, 1892

Appeal from general sessions circuit court of Anderson county; W. H WALLACE, Judge.

John Banister was indicted for murder, and from a conviction of manslaughter appeals. Affirmed.

The following are the judge's charge and defendant's exceptions:

"The defendant is indicted here for murder; and as in criminal offenses the greater offense always includes the lesser offense, he is indicted for manslaughter also. You will have to find the defendant guilty of murder, of manslaughter, or not guilty. There are only three possible verdicts you can render on the indictment. In order to enable you to consider the testimony intelligently, it is my duty to describe to you what murder is, and it is my duty to tell you what manslaughter is; and if the defendant is guilty of neither the one nor the other, from all of the circumstances, the only other possible verdict is that he is not guilty at all. Murder consists in the killing of a human being with malice aforethought, either express or implied. Now, you see, it consists of two things,--the killing of a human being, and that killing must be done with malice aforethought. I need not explain to you what killing is; you know that as well as any lawyer in the land: Here it is, of course, to take a human life. 'Malice' is used in the description of the offense as a term of art. It is a set phrase, and its most general definition, as used here in the description of murder, is evil intent. Now, to intend to kill a human being generally speaking, is to intend to do an evil act. Therefore the law holds that when one human being kills another, and that fact is known, and there is no more known in connection with the killing, the law presumes that it is murder. Because the fact is known of the killing, it is presumed that it was an intentional killing; and to intend to kill in pursuance of such intention is malice for to intend to kill is an evil intent, and therefore it is a malicious intent, and it is malice. Now, one man may kill another, intending to kill him. If one man kills another intending to kill him, but his primal motive is to save his own life, that is a higher motive than the right to kill and therefore that is excusable; and if, in saving his own life, a man thereby kills another, it is not a malicious killing. That is the reason that killing in self-defense is excusable, because it is not evil to take human life for the purpose of saving your own. In the case of murder, you kill for the purpose of taking a human life; in the case of killing in self- defense, you kill for the purpose of saving your own life. Well, there are other killings which I need not go into. You see the sheriff takes the life of a prisoner who is condemned to die under the judgment of the court, and that is not murder. Now, murder is the killing of a human being with malice aforethought. It is to kill him for the purpose of taking his life, and, whenever that is done without the purpose springing from a higher motive than the mere intent to take human life, that is murder. Manslaughter is the felonious killing of a human being without malice. Well, what is that? It is generally described as killing in sudden heat and passion, but that is unsatisfactory. Manslaughter is the felonious killing of a human being in sudden heat and passion. Now, Mr. Foreman to illustrate: You kill a man after he has angered you, and you mean to kill him, and do kill him, on that account, and in that state of mind, you are guilty of murder, because you have meant to kill him, and you have not killed him to save your own life, and have killed him; that is manslaughter.

"Now let us consider some of the aspects of the case you are trying in connection with the principle that I have submitted to you. In the first place, the defendant says that he did not kill Sam Banister. That is a question of fact for you to settle. If you are satisfied beyond a reasonable doubt that he did kill him, why, you go a step further, and inquire whether it was maliciously done,--whether it was done with an evil intent. Of course, if you have a reasonable doubt as to whether he killed him or not, you may stop your investigation right there. But, if you are satisfied beyond a reasonable doubt that he killed him, then did he kill him maliciously, in the sense I have described to you? Now, he insists that he did not kill him; if he killed him at all, that he did not kill him maliciously, because he did not die immediately, but that his death was hastened by the surgery performed by the Indian doctor. Now, you remember that Sam Banister did not die for several days. Now, suppose we take it that from that wound he would not have died for several days, and that other pistol shots had been fired there, and a ball had gone through his heart, and he had died, who killed him? Of course, the last man that shot killed him. You see, he had been shot through the head, and he would not die for several days; but while that was a question of time, and another shot fired by another hand killed him immediately, there, you see, he was sure to die from either shot, but the last shot caused the quicker death. Now, suppose that he only received one shot,--the shot in the head,--and that, in consequence of improper and bad treatment, his symptoms were aggravated, and his death hastened, still, if the shooting of the bullet in his head was the primal cause of his death, that would not excuse the person who inflicted that wound,--not at all,--and that is long-established law. No matter if the death is hastened or aggravated, the death is attributed to the first cause; but, if the first causes are disassociated and disconnected, then the cause of his death would be attributed to the one that did cause his death. Now, here is a case,--a very old case: 'We all agree that, ordinarily, if a wound is inflicted, not dangerous in itself, and the death was evidently occasioned by the grossly erroneous treatment, the original author will not be accountable. And we agree, also, that, if the wound was mortal or dangerous, the person who inflicted it cannot shelter himself under the plea of erroneous treatment.'

"That is the law in brief. Now, Mr. Foreman and gentlemen, that means this: Suppose two men get into a personal encounter upon the streets, and one inflicts a slight wound upon the arm of the other, and there is no danger from it; but suppose some ignorant person put something on it, or made some foolish treatment, whereby harm resulted,--the law holds that the person who inflicted the wound is not guilty, but the person who did the treatment is. But where one man wounds another, and he dies from the wound, that person is responsible for his death. Now, that is the rule. Now, I am not going to indicate to you in the slightest way what my views are on this subject. You have heard all the testimony. There is testimony here that a person known as the 'Indian Doctor' stuck an instrument into the head of the deceased. The legal rule is that if Sam Banister was suffering with a wound, and that person came there, and, no matter how ignorant, if that wound was fatal when it was inflicted, then that person who fired that shot would be responsible for his death. But if the wound was not at all dangerous, but was a slight wound, and the Indian doctor had been sent for, and he had applied something which killed him the person who inflicted the wound would not be guilty, but the Indian doctor would be held responsible, probably for manslaughter, but the man who inflicted such a wound would not be responsible for his death. Now, there was another point which was made in the argument, which is this: That if one man shoots a fire-arm at another, and misses that other, and strikes a by-stander, he who fires is just as responsible for striking that by-stander as if he had hurt the one he fired at. If he shot at a man and intended to kill him, and the bullet strikes another, and kills that other, the act is the same quality and degree as if he had struck the man he shot at and killed him. Now, a great deal has been said in argument as to the rights of John Banister to shoot Sam Banister, upon the assumption that Sam was cutting Jess. Counsel stated the law properly to you, I think, on that point. Now, a man has no right to kill another to prevent the commission of a misdemeanor; but any citizen has the right to shoot another to prevent a felony, or to prevent the escape of the felon in any other way. Suppose one man shoots another, kills him, and he is indicted and put upon his trial, his defense is: 'I shot him to prevent him from committing a felony.' He must show that the felon was committing a felony, and that you could not have prevented him from committing it without shooting him. You must show that, and, if you can show that, you go free; if not, you do not go free. Now, taking human life to prevent a grievous wound is excusable. If you cannot tell whether the man is going to kill or not, the law throws the same protection around a man who takes life to prevent a grievous wound, just as it would protect a man for preventing the burning down a house by taking human life, and he must show that the wound would have resulted in a felony; and it is not only excusable homicide, but justifiable homicide, because he is in the discharge of a public duty. As I said, if the case is made out that it is not necessary for...