State v. Bush
| Decision Date | 09 January 1948 |
| Docket Number | 16027. |
| Citation | 45 S.E.2d 847,211 S.C. 455 |
| Parties | STATE v. BUSH. |
| Court | South Carolina Supreme Court |
Williams & Busbee, of Aiken, and Starkey S. Flythe, of Augusta Ga., for appellant.
B. D. Carter, of Bamberg, and John E. Stansfield of Aiken, for respondent.
Appellant Wylie Bush, shot one Otto Drakeford with a pistol on October 1, 1945, at Graniteville, South Carolina. Upon an indictment charging him with assault and battery with intent to kill, he was tried October, 1946, found guilty and a sentence for a term of four years imposed. The questions raised by the exceptions relate to the admission of testimony and the charge of the trial Judge, and can better be understood by first making a general statement of the case as developed by the testimony.
Appellant was married in 1928. He and his wife lived together until March, 1943, when they separated. During this period two children were born, a boy and a girl, who at the time of the trial were approximately seventeen and thirteen years of age, respectively. After living separate and apart for a period of about six months, the parties became reconciled and lived together at Augusta, Georgia until December, 1944, when they again separated. Mrs. Bush and the two children then left Augusta and moved into the home of her brother-in-law and sister, Mr. and Mrs. Otto Drakeford, at Graniteville. Shortly thereafter the son went back to Augusta and has since resided with his father. Appellant's wife secured work in a mill at Graniteville and, along with her daughter, continued to live in the Drakeford home where her father also resided.
During the afternoon of October 1, 1945, appellant left Augusta and drove his car to Graniteville, stopped in front of the Drakeford home about 6:30 P.M., called his daughter and carried her to a nearby store at which he purchased some grapes and ice cream. In about thirty minutes he returned, parked his car across the road from the Drakeford home, and told his daughter to take the ice cream in the house and tell her mother to come out to the car as he wanted to talk with her. His daughter returned and told her father that her mother 'had nothing to say to him'. He then told her to go back and tell her mother that he wanted his engagement ring. There is a sharp conflict in the testimony as to what then transpired. The testimony of the State was to the effect that appellant started cursing and raising a disturbance; that his father-in-law, who was sitsing on the porch at a distance of about thirty or forty feet from appellant's car, called Otto Drakeford, who was inside the house, and told him to come out and make appellant leave; that Drakeford then went into the yard and remonstrated with appellant about his cursing and raising a disturbance; and that appellant, while sitting in his car, without any provocation, shot Drakeford four times while the latter was standing in his yard at a distance of about twenty-two feet from appellant.
Appellant denied that he cursed or created any disturbance. He testified that as he was getting ready to leave, Drakeford came out into the yard and, while cursing and threatening his life, started toward his car; that when Drakeford was within close range, he asked him to stop, but he continued to advance and threw his hand back in a manner indicating that he was reaching for a weapon; and that he then took his pistol from the car and shot Drakeford in self-defense. According to appellant's contention, Drakeford was in the road when the shooting occurred.
We shall now refer to the testimony which appellant strenuously objected to and now claims was improperly admitted. The State offered testimony to the effect that after Mrs. Bush moved to the Drakeford home, appellant, while drinking, came to see her several times in an effort to induce her to come back to him; that the last visit prior to the shooting occurred about eleven o'clock on the night of August 25, 1945, at which time appellant was disorderly, attempted to assault and made threats against Drakeford, and was told by the latter not to return to his home again. Testimony was also admitted to the effect that appellant's wife had to leave him because he was 'forever drinking, quarreling and cursing' and that on several occasions prior to their separation appellant assaulted his wife. Illustrative of this line of testimony is the following:
The rule is well settled that in assault and battery and homicide cases, evidence that the accused and prosecuting witness or the deceased had a previous difficulty is admissible, but it is improper to admit the details of such difficulty. State v. Evans et al., 112 S.C. 43 99 S.E. 751; State v. Abercrombie, 130 S.C. 358, 126 S.E. 142; State v. Kennedy, 143 S.C. 318, 141 S.E. 559; State v. Smith, 200 S.C. 188, 20 S.E.2d 726. In State v. Evans et al., supra, and State v. Abercrombie, supra, ...
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