State v. Blackstone

• Decision Date: 14 July 1930
• Docket Number: 12949.
• Citation: 154 S.E. 161,157 S.C. 278
• Parties: STATE v. BLACKSTONE.
• Court: South Carolina Supreme Court

154 S.E. 161

157 S.C. 278

STATE v. BLACKSTONE.

No. 12949.

Supreme Court of South Carolina

July 14, 1930

Appeal from General Sessions Circuit Court of Aiken County; H. F Rice, Judge.

Ollie Blackstone was convicted of manslaughter, and he appeals.

Reversed and remanded.

D. W Gaston, Jr., and Williams, Croft & Busbee, all of Aiken, for appellant.

B. D Carter, Sol., of Bamberg, for the State.

STABLER J.

On May 10, 1929, the defendant, Ollie Blackstone, was tried for murder in the court of general sessions for Aiken county, was convicted of manslaughter, and was sentenced to a term of six years.

The defendant, on appeal, excepts to the following charge of the court with respect to the plea of self-defense:

"The first, is the necessity, because self-defense is bottomed on the law of necessity. The law says if it was necessary for you to do this in order to save yourself from being killed or from serious bodily harm, you are excused, provided, you make out the other elements of self-defense. He must not only show that it was necessary for him to do as he did, and that he believed it, but that a man of ordinary coolness and firmness placed in his situation at the time he fired the shot, would have also believed as he said he believed that it was necessary to shoot or strike to protect himself."

This exception must be sustained. The charge made actual necessity the test and excluded the defendant's right to rely upon apparent necessity. The accused has a right to rely upon his belief in the necessity, provided that the circumstances in which he was placed were such as would, in the opinion of the jury, justify such a belief in the mind of a person possessed of ordinary firmness and reason. State v. Bethune, 112 S.C. 100, 99 S.E. 753, and numerous other cases.

The charge here is different from that in State v. Davis, 121 S.C. 350, 113 S.E. 491, in which, the charge being correct as far as it went, it was held that if the defendant desired a fuller statement of the law he should have made a request therefor. The case differs also from those like State v. Herron, 116 S.C. 282, 108 S.E. 93, in which, the charge being taken as a whole, it was held that a statement indicating that the necessity must be actual was cured by another statement that the defendant had the right to rely on appearances. In the case at bar what the trial judge said with reference to necessity was erroneous, and the error was not cured by anything else in the charge.

It is suggested, however, that the instruction complained of was not error, for the reason that the evidence in the case shows conclusively that, if there was a necessity for the killing, it was actual and not merely apparent; and hence the proposition of law as to the right of the defendant to act upon appearances was not applicable under the facts of the case.

We do not so read the record. There was evidence tending to show that, while the deceased indulged in rough play with the defendant, there was no bad feeling between the two men; that the knife the deceased had, if he had one, was an old pocket knife "bent back in the hack"; and that after he was shot, he exclaimed, "Man, you shot me and I was playing with you."

The jury might very reasonably have inferred from this testimony that, if the deceased had a knife, it was a broken one with which he could do no great hurt, and that he really intended no harm to the defendant; any such inference would have convinced them that if there was a necessity for the killing, it was not actual but only apparent. Under these circumstances, the failure of the trial court to charge the jury that the defendant had a right to act upon appearances was highly prejudicial.

Under this view of the matter it is unnecessary to consider the other exceptions.

The judgment of this court is that the judgment of the lower court be reversed, and the case remanded for a new trial.

WATTS, C.J., and BLEASE, J., concur.

COTHRAN, J. (dissenting).

It is unquestionably the law that a defendant, setting up the plea of self-defense, is not required in every instance to show that there was an actual necessity for him to take the life of his assailant. The circumstances may be such as to demand a limitation of this extreme statement. As his honor Judge Bonham charged in the case of State v. Boyd (S. C.) 152 S.E. 677, 678, now in process of decision:

"*** The danger need not be actual. If it is an apparent danger, and one which a man of ordinary firmness and coolness would have come to the conclusion it was an immediate danger, he would have a right to act upon it. Suppose I walked up to you, Mr. Foreman, and presented a pistol at you, and I said I was going to kill you, and you, acting on that, killed me. It may turn out that that pistol was not loaded, and you were in no danger, yet you were entitled to act on appearance of danger."

As to the correctness of this charge there can be no controversy; and if in the present case there had been any evidence which could reasonably have required such a limitation of the doctrine of necessity, there would have been just ground of complaint with regard to the failure to state it in connection with the requirement of necessity. But as I read the evidence there was no circumstance which required it. The defendant testified that the deceased was attacking him with a knife; that he warded off the blow with his arm; that his sleeve was cut and his arm bruised. The danger was imminent and actual, and if the jury had believed his testimony he should have been acquitted. Many judgments have been reversed upon the ground that the trial judge charged certain propositions of law in the absence of any evidence establishing a basis for their application; and I do not think that a judgment should be reversed upon the ground that he failed to charge a proposition of law when there were no facts to which it was applicable.

CARTER, J., concurs.

CARTER J. (dissenting).

Being unable to agree with the conclusion reached in the leading opinion in this case, I most respectfully dissent therefrom. The exception sustained in the leading opinion reads as follows:

"4. The Court erred, it is respectfully submitted, in charging the jury with respect to his right of self-defense as follows: "The first is the necessity, because self-defense is bottomed on the law of necessity. The law says if it was necessary for you to do this in order to save yourself from being killed or from serious bodily harm you are excused, provided you make out the other elements of self-defense. He must not only show that it was necessary for him to do as he did and that he believed it but that a man of ordinary coolness and firmness placed in his situation at the time he fired the shot would have also believed as he said he believed that it was necessary to shoot or strike to protect himself.' The error being that the charge made actual necessity the test, and although it made actual necessity the test, it further required that a person of coolness must believe as he did that there was actual necessity and it entirely eliminates apparent necessity, said charge being extremely prejudicial to the defendant in his right of self-defense when his adversary was coming on him in the dark with a knife."

In my opinion this exception should be overruled.

The duty of the trial judge in his charge to the jury was stated by the court in the case of State v. Du Rant, 87 S.C. 532, 70 S.E. 306 and 307, quoted with approval in the recent case of State v. Faulkner, 151 S.C. 381, 149 S.E. 108, as follows:

"The requirement of the constitution that the judge 'shall declare the law' does not mean that the judge shall tell the jury all about that branch of the criminal law under which the crime charged in the indictment falls; but it means that he shall explain so much of the criminal law as is applicable to the issues made by the evidence adduced on the trial. The purpose of a charge is to enlighten the jury. This purpose is

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