State v. Bethune

• Citation: 99 S.E. 753,112 S.C. 100
• Decision Date: 23 June 1919
• Docket Number: 10213.
• Parties: STATE v. BETHUNE.
• Court: United States State Supreme Court of South Carolina

99 S.E. 753

112 S.C. 100

STATE v. BETHUNE.

No. 10213.

Supreme Court of South Carolina

June 23, 1919

Appeal from General Sessions Circuit Court of Lee County; George E Prince, Judge.

Willie Bethune was convicted of murder, and appeals. Reversed.

See also, 104 S.C. 353, 89 S.E. 153.

John H Clifton, of Sumter, for appellant.

F. A McLeod, Sol., of Sumter, for the State.

GARY C.J.

The defendant was indicted for the murder of G. B. Mims. The jury rendered a verdict of guilty, and he was sentenced to be electrocuted. There were several former appeals in this case, and the report of the case in 86 S.C. 143, 67 S.E. 466, states the circumstances out of which the homicide arose. The defendant has appealed upon several exceptions; and the first question that will be considered is whether there was error on the part of his honor the presiding judge in refusing the appellant's motion for the direction of a verdict as to murder on the ground that there was no testimony tending to show that the defendant was guilty of that crime. The testimony upon this issue was conflicting, and it was properly submitted to the jury. The next question is presented by the following exception:

"It is respectfully submitted that his honor has confused the law of self-defense with the law of preserving one's liberty against arrest, in that one unlawfully attempted to be arrested is not bound to retreat or seek or embrace a way to escape, but may stand his ground and use such force as may be necessary to repel an unlawful arrest or detention or interference with his person, and a person seeking to arrest and detain another person must show a clear, legal right to do so, and that such right of resistance is not based upon the necessity as understood in the law of self-defense."

His honor the presiding judge thus instructed the jury in his general charge:

"A private individual even has the right to arrest without a warrant for a felony, but he has no such right to arrest for a misdemeanor. I charge you, gentlemen, that in this state the use of a man's horse and buggy without his permission is a misdemeanor under the statutes of South Carolina, and under that statute no officer has a right to arrest for an offense not committed in his presence, and a private citizen has no right to arrest any one. Where one is wrongfully in possession of another's property, the owner of the property has a right to repossess himself of his property without taking legal steps, provided he can do so without committing a breach of the peace. * * * But one has no right to commit a breach of the peace in order to get possession of his own property, and if there is any probability of a breach of the peace, he must swear out a warrant and get an officer to execute it. I charge you that a man has the right to defend himself from an unlawful arrest, and for the purpose of so protecting himself he has the right to use whatever force is necessary, even to the taking of life, the life of him who is seeking to

make the unlawful arrest, if that be apparently necessary, and if it would have been apparently necessary to a man of ordinary courage in the circumstances. I charge you that, where one is defending his person from an unlawful arrest, he had the right to use just so much force as is apparently necessary to accomplish his deliverance and no more. He has not the right to use excessive force unless excessive force not only be apparently necessary to him, but would have been to a man of ordinary courage so situated. If the defendant used excessive force in order to prevent an unlawful arrest of his person, and did it in sudden heat and passion, and not because of any preformed purpose, he would only be guilty of manslaughter."

After the general charge to the jury the record shows that the following took place:

"Does counsel for the state desire any additional charge? "Mr. Stoll: No, sir.

"Does counsel for the defendant desire anything additional?

"Mr. Clifton: Yes, sir; we think under the facts in the case that it is analogous to an unlawful arrest, and he is entitled to have the jury charged in this case that, if the deceased attempted by force, or by show of force, or by any means that amounted in law to assault, to detain, that the law would have permitted him to use such force as was necessary to avoid such detention, such forced detention, and if he acted on that show of force that would amount in law to sufficient legal provocation, and would at least confine the killing to manslaughter.

"The Court: I will charge that, provided that the

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