State v. Bowers

• Decision Date: 02 January 1923
• Docket Number: 11086.
• Citation: 115 S.E. 303,122 S.C. 275
• Parties: STATE v. BOWERS ET AL.
• Court: South Carolina Supreme Court

115 S.E. 303

122 S.C. 275

STATE v. BOWERS ET AL.

No. 11086.

Supreme Court of South Carolina

January 2, 1923

Appeal from General Sessions Circuit Court of Greenville County; R W. Memminger, Judge.

Carl Bowers and another were convicted of manslaughter, and they appeal. Reversed, and remanded for new trial.

Gary C.J., and Fraser, J., dissenting.

Dean Cothran & Wyche, of Greenville, for appellants.

D. W. Smoak, Sol., and Bonham & Price, all of Greenville, for the State.

MARION J.

The defendants were convicted of manslaughter in the court of general sessions, Greenville county, August term, 1921, upon an indictment charging them with the murder of Andy Wells, at Travelers' Rest, S. C., May 7, 1921.

There was evidence adduced on behalf both of the state and of the defendants tending to establish the following facts. The defendant Walter Bowers, a married man, 44 years of age, the father of nine children, lives near the village of Travelers' Rest. The defendant Carl Bowers, 21 years of age, is his son. On the evening of May 6, the normal tranquility of Travelers' Rest seems to have been disturbed by a "rucus" at a school entertainment. In connection with this disturbance, it appears that two of Walter Bowers' minor sons, 18 and 20 years of age, were searched for a pistol by a magistrate's constable, assisted by the deceased, Andy Wells. Neither of the defendants was present at the school entertainment. The next morning the defendants went to the village to repair their Ford car in a garage owned by the defendant Walter Bowers. The elder Bowers, in commenting on the searching of his boys the night before, remarked that "Andy Wells was like himself, so poor he stunk," and that "he had to do something like that to get people to notice him." The ubiquitous Ransy Sniffles seems to have conveyed this remark in due course to Andy Wells at his barber shop, a quarter of a mile away, accompanied by the friendly suggestion that "he wasn't game if he didn't go down and see about it."

Some time thereafter, in the early afternoon, Andy Wells, with several companions, among whom were his father and his brotherin-law, appeared in front of the defendant's garage. No explanation for this visit, other than a purpose on the part of Wells to show that he was "game," is suggested by the evidence. After Wells had been around the front of the garage for some time the elder Bowers invited him in, saying that he wished "to see him." Wells then went to the rear of the garage. According to the state's witnesses, the next development was the cursing of the elder Bowers by the deceased, Andy Wells, without a return in kind by word or act on the part of Walter Bowers, who started to walk away. His son Carl Bowers reacted to the cursing of his father by applying a profane epithet to Wells. Wells, who was a considerably heavier man, then knocked Carl Bowers down or toward the ground. Young Bowers came up with an iron axle with which he struck Wells a blow on the head that resulted in his death. The fatal encounter took place upon the premises of Walter Bowers and at the defendants' place of business.

The first four exceptions complain of error on the part of the trial court in refusing to permit the defendant Walter Bowers to state what his minor sons had told him as to the treatment accorded them at the school entertainment the night before the day of the homicide. It is contended that inasmuch as the state had been permitted to go fully into the details of the disturbance at the school entertainment for the purpose of disclosing motive and proving malice on the part of the defendant Walter Bowers, the said defendant should have been allowed to relate what his boys had stated to him in regard to the difficulty, with particular reference to the connection therewith of the deceased, Andy Wells, for the purpose of showing that the defendant's criticism of Andy Wells was not without provocation and was not prompted by "pure maliciousness." For the purpose offered we think the testimony as to the nature and tenor of the communications made to the father by his sons was admissible.

"Wherever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the hearsay rule is concerned." Wigmore on Evidence, § 1789.

"Where the question is, whether a party has acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence and not mere hearsay." Friend v. Hamill, 34 Md. 298, 308.

See State v. Price, 103 S.C. 277, 279, 88 S.E. 295.

The extent to which a witness may be allowed to enter into detail in testifying to communications of this kind, however, must be left largely to the discretion of the trial court. In the case at bar the defendant Walter Bowers was permitted to testify that he had been told by his boys "about being searched at the school entertainment," and as to his mental attitude toward the deceased, Wells, after the receipt of such information. In view of the admission of that testimony and of the jury's verdict of manslaughter, which absolved the defendants of malice in the commission of the homicide, we do not think it appears that the defendants suffered such prejudice from the exclusion of this testimony as would warrant the reversal of the judgment below upon that ground alone. For that reason the exceptions raising this point are overruled.

The defendants assign error (eighth exception) in the refusal of the trial court to charge their fourth request as follows:

"One who is assaulted in his own house is not required to retreat before exercising his right of self-defense, and I charge you that a man's place of business is within the meaning of this rule and is deemed his dwelling, and he need not retreat therefrom in order to invoke the benefit of the doctrine of self-defense."

The request states a correct proposition of law directly pertinent under the facts to the consideration of the plea of self-defense invoked by the defendants. State v. Marlowe (S. C.) 112 S.E. 291; State v. Brooks, 79 S.C 144, 60 S.E. 518, 17 L. R. A. (N. S.) 483, 128 Am. St. Rep. 836, 15 Ann. Cas. 49. It is contended on behalf of the state that this proposition of law was fully covered by the general charge. A careful examination of the charge as a whole, however, fails to satisfy us that the defendants were given the benefit of a clear-cut enunciation of the principle embodied in this request. The learned circuit judge clearly stated the law as applied to a "man's house,"...