State v. Brooks

• Decision Date: 24 April 1969
• Docket Number: No. 18909,18909
• Citation: State v. Brooks, 252 S.C. 504, 167 S.E.2d 307 (S.C. 1969)
• Parties: The STATE, Respondent, v. Goss BROOKS and Bill Elrod, Appellants.
• Court: South Carolina Supreme Court

Page 307

167 S.E.2d 307

252 S.C. 504

The STATE, Respondent, v. Goss BROOKS and Bill Elrod, Appellants.

No. 18909.

Supreme Court of South Carolina.

April 24, 1969.

G. Ross Anderson, Jr., Karl L. Kenyon, Anderson, for appellants.

Solicitor William H. Ballenger, Walhalla, Atty. Gen., Daniel R. McLeod, Asst. Atty. Gen., Emmet H. Clair, Columbia, for respondent.

MOSS, Chief Justice.

Goss Brooks and Bill Elrod, the appellants herein, were tried at the 1967 August term of the General Sessions Court for Oconee County upon an indictment charging them with the murder of Frank Gibby, the alleged offense having occurred on March 10, 1966. The trial resulted in a verdict of guilty with recommendation to the mercy of the court and they were sentenced to imprisonment for life. Following the conviction of the appellants, a motion for a new trial was made and denied. This appeal followed.

Midway Tavern, adjacent to U.S. Highway No. 123 in Oconee County, was owned by one Joe Brooks, with an interest being held therein by his son, Goss Brooks. The Tavern was managed by one Bill Elrod.

On the night of March 10, 1966, Frank Gibby, accompanied by three of his friends, came to Midway Tavern at about 9:00 P.M. They remained for a short time and then visited other places, returning to Midway at about 11:00 P.M. The appellants were not present at the time but came in later. Elrod was not working the night in question but the place of business was being operated by one Juanita Smith. Elrod, who admittedly had been drinking, reprimanded Juanita Smith for not properly operating the Tavern during his absence and he ordered her to leave. She left the place of business and Gibby went out with her and after they had some conversation they came back into the Tavern and sat down in a booth. It appears that words were exchanged between Elrod and Gibby as to the treatment that had been accorded Juanita Smith. Gibby and his companions were ordered to leave the Tavern. It is the State's contention that Gibby was an invitee of the Midway Tavern and in compliance with the order to leave the Tavern that Gibby went outside into the parking area, being unarmed at the time, and the appellants, each being armed with a pistol, followed him out of the place of business into the parking area where words were exchanged and a scuffle took place between Elrod and Gibby. It was then that the appellants shot and killed Gibby while he was near his automobile.

The appellants testified that inside the Tavern Gibby was arguing with Bill Elrod as to his treatment of Juanita Smith. Gibby was ordered to leave the Tavern and in compliance with said order went outside; the door to the Tavern was then closed, but Gibby kicked the door open and told Elrod that he was not satisfied with the way he had treated Juanita Smith. They testified that Gibby was cursing and at the time was armed with a pistol. It was at that time that Goss Brooks went outside and was followed by Elrod. They testified that while Elrod was talking with one J. B. Outz, a companion of Gibby's, that Gibby ran up to Elrod and Grabbed his gun out of his pocket and threatened to kill the appellants, firing two shots in such attempt. Brooks testified that after Gibby had fired one of two shots that he then fired his gun in order to defend himself. Brooks's gun was fired five times. One bullet was removed from Gibby's body and identified as having come from Brooks's pistol.

We have not recited all of the testimony that was given by the various witnesses at the trial. We have only stated so much of the testimony in behalf of the state and the appellants as is necessary to show the contentions of the state and the appellants with reference to the instructions of the trial judge to the jury.

The trial judge instructed the jury that one who operates a place of business necessarily invites customers to enter the premises and that one who enters as a customer or an invitee the business establishment of another is required by law to conduct himself in a reasonable and proper manner, and that a proprietor or manager or owner of a place has the duty to maintain peace and good order within his place of business. They were further instructed that even though a person has entered the business premises of another, at the invitation of the manager or owner, his subsequent conduct may be such as to justify a proprietor or manager in revoking the invitation to remain as a guest in said place of business and to order his departure. If he refuses to leave, the proprietor or manager has the right to use such force as may be reasonably necessary to eject the one who has become a trespasser, and he must not use more force than is necessary or reasonable for said purpose.

The appellants interposed a plea of self-defense. The jury was instructed that the burden of proof of such a defense rested upon the appellants and that the elements of such were (1) that the appellants were without fault in bringing on the immediate difficulty, or the necessity of taking human life; (2) that at the time the fatal shot was fired the appellants believed that they were in imminent danger of losing their lives or sustaining serious bodily harm; and (3) that a reasonably prudent man, a man of ordinary firmness and courage, would have reached the same conclusion. The fourth element, known as the law of retreat, was not mentioned in these instructions.

At the conclusion of his charge, the trial judge...