State v. Bethea, 17945

• Decision Date: 20 July 1962
• Docket Number: No. 17945,17945
• Citation: 126 S.E.2d 846,241 S.C. 16
• Parties: The STATE, Respondent, v. W. M. BETHEA, Appellant.
• Court: South Carolina Supreme Court

Page 846

126 S.E.2d 846

241 S.C. 16

The STATE, Respondent, v. W. M. BETHEA, Appellant.

No. 17945.

Supreme Court of South Carolina.

July 20, 1962.

Goldberg & Cottingham, John C. Lindsay, Tison & Tison, Bennettsville, for appellant.

Robert L. Kilgo, Sol., Darlington, for respondent.

BRAILSFORD, Justice.

On August 31, 1960, Leona Prevatte was shot twice with a pistol. She died the next day. W. M. Bethea was tried at the June, 1961, term of the court, Honorable J. A. Spruill presiding. He was convicted of manslaughter and sentenced to a term of imprisonment. He has appealed on three exceptions, which relate to the charge of the trial judge and the admission in evidence of certain statements as dying declarations. These issues may be better understood after a review of the pertinent evidence, most of it from appellant's testimony.

The decedent was a widow, and according to appellant's testimony, had been his mistress for some eight years prior to her death. She lived near Bennettsville in a home which he had assisted her in establishing and furnishing and to which he had a key. From time to time he contributed to her support. Her eleven year old daughter lived with her, but was absent on the night of the homicide. Because of his own poor health, financial difficulties and the age of the child, appellant had for some time sought to terminate his relationship with Mrs. Prevatte. She opposed his suggestions and was inclined to become excited and abusive when the subject was broached.

On the night of the homicide, Mrs. Prevatte and appellant had supper together in Cheraw. On their return trip, he brought up the subject to ending their relationship. 'She got terribly upset and excited--just carried on, cursing and abusing' him. They both got out of his automobile at her home, and he told her to go on in and 'cool off'; that he would be back in a few minutes and they would 'talk this thing over and--get something straightened out about it.'

After leaving for a short time, appellant returned and, at Mrs. Prevatte's invitation, entered the front room of the house. As he walked across this room, she approached along a hall, her right hand behind her back and an open door between them. Quoting from appellant's testimony: 'She say, 'You're going to spend the night with me, aren't you?' I says, 'No, we've already been into that now. I thought we had that understood.' She says, 'Well, you're not going to leave me,' and she dropped her hand down to her side. At that time, I saw she had that pistol in her hand. So when I saw the pistol in her hand, I went in my pocket for my gun. I had my gun in my righthand pants pocket. She says, 'You son of a bitch, I'm going to kill you,' and she come up with it like that (bringing hand up front) and when she did, I shot twice, simultaneously, jumped back and she fell; when I shot her she fell around like that and threw her hands up and says, 'My God, you shot me." (As an inspector for the South Carolina Public Service Commission and constable, appellant customarily carried a pistol.)

When asked why he shot Mrs. Prevatte, appellant testified that he did so to save his own life, that he knew she would kill him.

After the arguments of counsel and the court's charge, counsel for appellant, in the absence of the jury, requested an instruction that 'the defendant does not have to run under the law of self defense. He must retreat but not run.' Counsel conceded that the law of self defense had been charged correctly, and stated:

'But the position we take is that the solicitor argued to the jury that he should have run. And we say as a matter of law in South Carolina a defendant is not required to run.'

This request was refused upon the ground that the solicitor's remarks 'were simply argument on the facts and not a question of law.'

The refusal of this request is assigned as error. The record shows only that the solicitor 'argued to the jury that the defendant situated as he was should have closed the door and run.' The trial judge heard the entire argument and was in a much better position to appraise it than we are. We cannot say that he erred in concluding that the argument was of a permissible inference of fact and did not require amplification of the admittedly correct charge.

The cases relied upon by appellant, State v. Jordan, 109 S.C. 409, 96 S.E. 221; State v. Burdette, 118 S.C. 164, 101 S.E. 664, are authority for the proposition that it is error for the court to instruct the jury that a defendant must run, if he will not thereby increase his own danger. They are not authority for the proposition that a defendant is entitled to an instruction that he need never run, as a means of retreat, no matter how open and safe this way of escape may appear to be. Whether the appellant should have closed the door between him and his assailant and left the premises, by whatever means, was an issue of fact, which was properly submitted to the jury, under a correct charge as to the law. The appellant was entitled to no more.

Appellant's counsel made another request for an instruction, which was refused, as follows:

'Then, if the Court please, we ask that you charge the jury the law in regard to an invitee. You can't invite a person into your home and then shoot them down. We ask that you charge the law of an invitee.'

This request was properly refused. The sharp issue for the jury was whether defendant should be acquitted on his plea of self defense or convicted. There is no suggestion in the evidence that this difficulty arose from an attempt to eject appellant. The contrary plainly appears. Appellant testified that he shot to save his own life. The court instructed the jury that he should be acquitted on this plea if it was established by the evidence, or if there was a reasonable doubt that it was so established. Again, he was entitled to no more.

Appellant's reliance upon State v. Bradley, 126 S.C. 528, 120 S.E. 240, is misplaced. There the slayer was an invitee on the premises of the victim. His conviction was reversed because, in the light of the evidence, the court's charge on the right of the occupant to eject had the effect of 'practically annihilating his plea of self-defense.' The opinion in the Bradley case, by Mr. Justice Cothran, stated four 'essentially different situations which call for the application of the law of habitation, curtilage, and premises.' The principles quoted in appellant's brief are said to be applicable: 'When the occupant is the slayer and stands upon the right to protect his habitation, apart from the plea of self-defense.' Neither this situation, nor any of the others stated in the opinion, is applicable here.

The last exception charges error in the admission in evidence of certain statements made by Mrs. Prevatte to Sheriff Weatherly, at the scene of the shooting, and to a nurse at the hospital.

Under the long established rule, which we quote from State v. Johnson, 26 S.C. 152, 1 S.E. 510, dying declarations are competent evidence, for or against the accused, upon preliminary proof of certain conditions.

'The rules in regard to such testimony are well settled: 1st. That death must be imminent at the time the declarations in question are made. 2nd. That the declarant must be so fully aware of this as to be without any hope of life. * * * And 3rd. That the 'subject of the charge' must be the death of the declarant, and the circumstances of the death must be the subject of the declarations.'

Following a telephone call by appellant, Sheriff Weatherly arrived at the Prevatte home about 10:30 p. m., shortly after the shooting. He found Mrs. Prevatte on the floor, bleeding profusely, apparently in pain and unable to move her legs. The sheriff testified that after some preliminary conversation about getting her to the hospital, which she protested on the ground that she had no money, she said to him: "I want Cindy.' I asked who Cindy was and she said, 'That's my baby.' I asked her where Cindy was. She said, 'Bill knows where she is.' Then she said, 'Bill shot me.' I asked her why he had shot her and she said, 'For no reason at all other than he got mad.' She further stated, 'I'm going to die and I don't care,' says, 'I want him to pay."

This testimony was first elicited in the absence of the jury. Its admission as a dying declaration was objected to upon two grounds: 1st. The admission of a dying declaration violates the constitutional right of a defendant to be confronted by the witnesses against him. 2nd. The evidence was insufficient to show that the declarant had given up all hope of recovery when the statement was made.

Mrs. Prevatte was taken to the hospital immediately after her conversation with the sheriff. She was operated on by Dr. C. A. Kinney. He testified that one bullet had passed through her body, causing 'a large gaping hole' through the liver and 'tremendous hemorrhage.' The other had lodged in the spine, causing paralysis of the left leg. She was treated 'with transfusions and everything else for shock, but her course was progressively downward. She stayed in shock. She stayed in circulatory collapse. Her kidneys shut down. And she died at five-forty-five P.M. on the first of September.'

Over the same objections which had been interposed to the testimony of Sheriff Weatherly, a registered nurse was allowed to testify as to statements made to her by Mrs. Prevatte before the operation, as follows:

'Q. Now speak out so they can hear you.

'A. The first thing she said was that Bill Bethea shot her and that she was going to die and she wanted him to pay for it. And than she told Dr. Kinney that she wanted him to take care of the little girl, Cindy.

'Q. She told Dr. Kinney that she wanted him to take care of * * *.

'A. (Interrupting) Yes. And then later on she said that if she died, she didn't want him to come to the funeral--talking about Mr. Bethea.'

Counsel again objected, calling attention to the qualifying words, 'if sh...