State v. Burnett

• Decision Date: 13 May 1947
• Docket Number: 15946.
• Citation: 42 S.E.2d 710,210 S.C. 348
• Parties: STATE v. BURNETT et al.
• Court: South Carolina Supreme Court

42 S.E.2d 710

210 S.C. 348

STATE v. BURNETT et al.

No. 15946.

Supreme Court of South Carolina

May 13, 1947

Samuel R. Watt, Sol., Samuel N. Burts, and C. Y Brown, all of Spartanburg, for respondent.

TAYLOR Justice.

The appellants, Thomas Burnett, Leon Burnett and Sammie Burnett were tried for assault and battery with intent to kill at the June 1946 term of Court of General Sessions for Spartanburg County; the alleged assault having occurred at approximately eight o'clock in the evening of April 6, 1946, at a filling station, in the City of Spartanburg operated by the prosecuting witness, Roy Lockman. The jury returned a verdict of guilty as to Leon Burnett, and guilty of assault and battery of a high and aggravated nature as to Thomas Burnett and Sammie Burnett. Leon Burnett was sentenced to serve four years in prison, and Thomas and Sammie Burnett to two years each, from which all three appeal to this Court upon the following exceptions:

1. That His Honor, the Presiding Judge, was in error in charging the jury that 'The law of self-defense is based upon the necessity to strike in order to save one's self from serious bodily harm, or losing his own life,' the error being that the charge made actual necessity the test and excluded the defendants' right to rely on apparent necessity.

2. That His Honor, the Presiding Judge, was in error in charging the jury 'A person cannot take advantage of his own wrong, if he brings on the encounter; brings it out by any other offense; brings on the attack, he cannot take advantage of bringing the encounter upon himself by his own fault,' the error being that the charge embraced any difficulty however previous rather than the immediate encounter and conveyed the impression that the defendant, if he had at any time previously been at fault in bringing on a difficulty with the prosecuting witness, could not avail himself of the plea of self-defense.

3. That His Honor, the Presiding Judge, was in error in charging the jury 'I instruct you if a person on his own premises is assaulted by an aggressor, he has the right to use such force as may be reasonably necessary to expel such person; to use such force as may be reasonably necessary to protect himself and to expel the alleged intruder. A person on his own premises has the right without any reason whatever, has the right to request or order any person to vacate his premises and such person if so ordered or requested to leave, it is his duty to leave reasonably promptly; and, if he does not, the owner or the person in possession lawfully, has the right to use such force as may be reasonably necessary to put him off, and such person is not deemed to have brought about the physical encounter by so doing,' the error being that there was absolutely no evidence that the defendants were on their own premises and the charge was highly prejudicial to the defendants' plea of self-defense in that it indicated that the prosecuting witness had the right to assault the defendants on his own premises, there being no evidence...