State v. Brown

• Decision Date: 22 January 1918
• Docket Number: (No. 9S66.)
• Citation: 95 S.E. 61
• Parties: STATE. v. BROWN et al.
• Court: South Carolina Supreme Court

95 S.E. 61

STATE.

v.BROWN et al.

(No. 9S66.)

Supreme Court of South Carolina.

Jan. 22, 1918.

Fraser, J., dissenting.

Appeal from General Sessions Circuit Court of Greenville County; Frank B. Gary, Judge.

Gordon Brown, Doill Huggins, Tom Harvey, John Humphries, and I. A. Williams were convicted of manslaughter, and Brown, Huggins and Humphries appeal. Affirmed.

Exceptions 4, 5, 6, 7, and 8, directed to be reported, were as follows:

(4) His honor erred in charging the jury in 6ubstance that if the defendants agreed to nave a fight and engaged in a fight they are supposed to have intended the consequences which followed from that unlawful act, from which death resulted and are equally responsible. It is submitted that said charge was erroneous; that persons engaged in such a fight are not responsible for the killing of another, unless it appears to the jury that such death is a probable consequence of such a combat.

(5) It is submitted that his honor erred in charging the jury upon the facts, in that he stated to the jury as follows: In regard to the jibes that were proved to be used there, if they were of such a nature reasonably to cause one to resent them by a blow, and did actually bring about that result, then the party who has engaged in those jibes would be precluded from availing himself of the plea of self-defense. It is submitted: (a) That this was a charge upon the facts in violation of article 5, § 26, of the Constitution of South Carolina, in that the court thereby stated as a fact that jibes were proved to have been used; (b) that it was erroneous, in that it precluded the person using such jibes for pleading self-defense after placing himself in defense of his friend or relative, or upon resisting an attack made upon him with a deadly weapon, which might not have been a result reasonably to have been anticipated from the use of such jibes; and (c) that it was an erroneous statement of the law.

(6) His honor erred in charging the jury that if one comes to the assistance of his friend or relative, he enters the combat upon the same footing as the person to whose assistance he comes and under the same legal status. It is submitted: (a) that this was a charge upon the facts in violation of article 5, § 26, of the Constitution, in that it made the original fault or innocence of the friend or relative the sole test of the justification of the person intervening; (b) it was a question for the jury to determine whether or not, under the circumstances existing at the time of the intervention, the party so intervening was justified; (c) that it was an erroneous statement of the law.

(7) His honor erred in charging that "if one voluntarily enters a mutual combat where deadly weapons are used, knowing that they are being used, and death results to one of the particular parties, every one engaged in such a combat is equally guilty regardless as to whether he used a deadly weapon or not, and regardless as to whether he was on one side or the other makes no difference, and when all are participating in a mutual combat, all are equally responsible for the natural consequences." It is submitted: (a) That this was a charge upon the facts in violation of article 5, § 26, of the Constitution, in that it took from the consideration of the jury the special circumstances under which any of these defendants may have entered said combat; (b) that it was erroneous in that it required the jury to find a party guilty, though he had entered the combat with deadly weapons and solely for the purpose of defending a friend or relative in imminent danger; (c) that it was an erroneous statement of the law.

(8) His honor erred in charging: "If one of the participants be on one side and the other be slain by participating in a mutual combat, all are equally guilty of the killing." It is submitted: (a) that this was a charge upon the facts in violation of article 5, § 26, of the Constitution, in that it took from the consideration of the jury all special facts and circumstances surrounding the entry of any of the parties into such a mutual combat; (b) that it was erroneous, in that it would affirm the guilt of one who entered into the combat solely for the purpose of defending his friend or relative from imminent danger; (c) that it was erroneous, in that it would affirm the guilt of one who entered a combat the nature of which was such that death was not a probable consequence reasonably to be anticipated; (d) it was an erroneous statement of the law.

Cothran, Dean & Cothran, Haynsworth & Haynsworth, and J. R. Martin, all of Greenville, for appellants.

P. A. Bonham, of Greenville, Sol., for the State.

GARY, C. J. The defendants were indicted for the murder of Davis Freize, and wereconvicted of manslaughter. Freize was killed in a general fight that took place on the early morning of the 27th of November, 1915, in front of the office of the Judson Mills. A few days before the homicide took place, a labor union was organized among the employes of the mill, and soon thereafter a strike of the weavers was called. A number of the employes joined in the strike, and the mill was closed, and so remained for about 20 days. On November 15th, a large majority of the employes who had become strikers returned for work, and the mill again started its operations. Those who continued on the strike, stationed pickets along the public roadways, about 200 yards from the mill, for the purpose of persuading the employes to join the strikers. There was no trouble until the morning of the 27th of November, when a party of the strikers, after failing in their efforts to influence the employes to join them, left their post and came past the mill office, where several of the workers had gathered. This was in the early morning while it was still dark, and a few minutes after the mill had commenced its work. The strikers and the employes exchanged a few jokes, when the defendant Harvey (one of the strikers) took exception to some remarks that were made in regard to him, and this led to a fight then and there, in which about four or five strikers and an equal number of employes took part. The defendants Harvey and Williams were strikers, and the defendants Brown, Huggins, and Humphries were nonstrikers. As the fight took place while it was still dark, the testimony is confused and conflicting, in regard to what occurred. Several of the combatants were severely cut, and David Freize (striker) was so badly cut that he did not linger long. There was testimony to the effect that when the fight commenced, Harvey had a knife, and that a bystander (Tidwell) exclaimed, "Look out, men; Harvey has his knife open"; that he saw the knife, and that Harvey struck at Humphries with it. In other words, there was testimony tending to show that those who joined in the combat knew that a knife was being used by one of the combatants. The defendants Brown, Huggins, and Humphries alone appealed.

These appellants made a motion for a severance, on the ground that their defenses were antagonistic to the defenses of the other two defendants; but the motion was refused, and this is made the basis for the first assignment of error. It is only necessary to cite the case of State v. Wade, 95 S. C. 387, 79 S. E. 106, to show that the exception raising this question cannot be sustained. [2] The second exception is as follows: "His honor erred in admitting the testimony of the witness, Hendrix Rector, to the effect that the deceased, David Freize, had stated to him, that Brown and Humphries had cut him, it being submitted that said testimony was bear-say, and that the rule with regard to dying declarations had not been complied with, in that it did not appear that said Freize was in imminent danger of death, and was without hope of recovery."

Hendrix Rector, sheriff of Greenville county, testified as follows:

"Was notified of the killing. Went to the home of Freize shortly after daylight. * * * Freize said, 'I am cut to death, and killed, ' or words to that effect. I asked him who were connected with the difficulty. He said Brown and Humphries had cut him."

The only reasonable interpretation of the words, "I am cut to death, and killed, " is that the declarant realized that he was at the point of death, and did not have any hope of recovery. It will be observed that he not only stated that he was cut to death, but that he was killed. The appellants' attorneys rely upon the case of State v. Belcher, 13 S. C. 459, in which the court uses the following language:

"Hearsay is evidence of facts with which the witness is not acquainted, but which he merely states from the relation of others, and is admissible for the double reason that the party originally stating the facts does not speak under oath, and the party against whom the evidence is offered has no opportunity to cross-examine the party making the statements. The only case in the whole range of the criminal law, where evidence is admissible against the accused without an opportunity of cross-examination is that of 'dying declarations' in cases of homicide, and they are only admissible from the necessity of the case, and when made in extremity, when the party is at the...