Appeal
from General Sessions Circuit Court of Hampton County.
WOODS
J.
The
defendants, Vincent Cook, Bose Cook, Daisy Cook, and Henry
Cook, were tried at February, 1906, term of the court of
general sessions for Hampton county, under an indictment
charging them with the murder of Hampton Smith.
Vincent Cook, Bose Cook, and Daisy Cook were convicted of
manslaughter, and Vincent Cook and Bose Cook were convicted
also under the second count of the indictment, charging them
with carrying concealed weapons. The following statement
appears in the record: "On the trial of the cause the
state offered testimony tending to show that at the time of
the alleged homicide there was a carnival in the town of
Hampton, and that deceased was one of a number of special
policemen, duly appointed by the town council to preserve
order, and that while attempting to arrest Daisy Cook for an
alleged breach of the ordinances of the said town of Hampton
he was set upon by the brothers of the said Daisy Cook and
shot to death with pistols. The defendants offered testimony
tending to prove that the defendants Bose Cook and Vincent
Cook came up suddenly and, finding their brother assaulted
interfered in his defense, and, under an impending necessity
to save their brother from death or serious bodily harm, they
took the life of the deceased. They further offered testimony
tending to prove that they were all without fault in bringing
on the difficulty. The state replied to the defense and
offered testimony tending to show that Daisy Cook was cutting
up the tents belonging to the parties who owned the show or
carnival, and, furthermore, that his codefendants had, on the
afternoon previous to the killing in the evening, made
threats against the life of the deceased. The issue was
submitted to the jury on the charge of the court."
The
first exception charges the circuit judge committed error in
ordering the defendant to go to trial on the 22d day of
February, a legal holiday. The facts bearing on this point
are thus stated in the record: "On the 21st day of the
said month, Mr. Tillinghast, one of the attorneys for the
defendants, inquired of the judge whether he would hold court
on the 22d of February, as he thought he could not do so
that being a holiday. The Judge ruled that he
knew of no law to prevent the court being held on the
succeeding day. The case was then called on the 22d of
February, and, no further objection being raised, the case
proceeded to trial with the result above stated." The
point is purely technical, and defendants suffered no
detriment. It will be observed that Mr. Tillinghast does not
appear to have had reference to this or any other case, and
the response of the circuit judge cannot be regarded as an
adjudication made in this cause. To make the objection
available on this appeal, it should have been distinctly made
against proceeding with this cause when it was called for
trial. Not having been made, it must be considered objection
to the trial on the 22d day of February was waived.
Mitchell v. Bates, 57 S.C. 52, 35 S.E. 420; 21 Cyc.
444.
2. The
second ground of appeal is as follows: "That his honor,
the presiding judge, erred in charging the jury, in reference
to the right to kill in defense of another, as follows:
'But if your brother or one near and dear to you provokes
a difficulty, or puts himself
in the wrong and bring it on, the law does not allow you to
go there, take his place, and kill that man, and say you are
guilty neither of murder nor manslaughter. *** The law does
not give the person who is near and dear to you the right to
provoke a difficulty, and then let you come in and kill some
one, when he has brought it on himself, and get out of it by
your saying he was near and dear to you, and you did the
killing on that account. But if he was without fault in
bringing on the difficulty, and the law would justify him in
defending himself, you have a right to go in and defend him.
But if he brings on the difficulty, and you take part, you do
it at your own risk, and if he took life under similar
circumstances, and would have been guilty of murder or
manslaughter, and you go in, take his place, and take life
under those circumstances, then you are guilty of murder or
manslaughter.' The error being that the said charge held
one striking in defense of a brother bound and affected by a
fault on the part of the brother defended, in
bringing on the difficulty, although he may have acted
without knowledge of such fault or may have had no
opportunity to ascertain who was at fault in bringing on the
difficulty, before being compelled by the pressing necessity
to act in defense of his brother, and he may be without fault
himself; whereas, it is respectfully submitted, that in order
for one to be affected by the fault of another he must at
least have some knowledge or opportunity to know it."
This
exception raises the important question whether one who
undertakes to assist a near relative, who is in danger of
death or great bodily harm at the hands of an antagonist
acts at his peril if the person assisted was actually in
fault in provoking the difficulty. There is some authority
for the view that the assistant is guilty who takes life in
aiding a relative in apparent danger of death or great bodily
harm, if he knew his relative to be the aggressor, or as a
reasonable man should have known it, but not otherwise.
Chambers v. State, 46 Tex. Cr. R. 61, 79 S.W. 572;
State v. Harper, 149 Mo. 514, 51 S.W. 89; Little
v. State, 87 Miss. 512, 40 So. 165. There are a number
of other cases decided by the Supreme Court of Texas to the
same effect, but in that state, as in Missouri, the law as to
homicide has been greatly modified by statute. Even if it be
assumed, however, the criminal codes of those states have not
affected the consideration to be given these decisions by
courts of other states, they are opposed to the great weight
of authority from the earliest times to the present. In
Hale's Pleas of the Crown (volume 1, p. 484), the rule is
thus stated: "The like law had been for a master killing
in the necessary defense of his servant, the husband in
defense of the wife, the wife of the husband, the child of
the parent, or the parent of the child, for the act of the
assistant shall have the same construction in such cases as
the act of the party assisted should have had, if it had been
done by himself, for they are in mutual relationship the one
to the other." See, also, 1 Bishop on Criminal Law, §
877, and 21 Cyc. 826 et seq. The doctrine is
thus comprehensively stated in Wharton on Homicide (3d Ed.) §
332: "The doctrine of freedom from fault in bringing on
a difficulty as a condition precedent to a plea of
self-defense applies with equal force to a case in which one
person interferes in a difficulty between two others in
behalf of, or to protect one of them; and generally speaking
a person who does this will not be allowed the benefit of the
plea of self-defense, unless such plea would have been
available to the person whose part he took in case he himself
had done the killing, since the person interfering is
affected by the principle that the party bringing on the
difficulty cannot take advantage of his own wrong. If the
person sought to be protected provoked or brought on the
difficulty, he must have clearly manifested a desire and
intention to retire from the conflict; and even then the
person interfering would not be justifiable if he struck the
fatal blow in pursuance of a previous design to assist his
friend in the event of a personal difficulty. And where one
person interferes in behalf of another who was the aggressor,
and there is opportunity to retreat after the interference,
and advantage is not taken of it, the person interfering can
claim no greater right than the other, and neither of them
can invoke the doctrine of self-defense. Thus, if a son fight
in defense of his father, his act in doing so will receive
the same construction as that of the father, and if the
latter was the aggressor in bringing on the difficulty, and
could not plead self-defense, the same rule applies to the
son. And the son cannot rely on his own freedom from fault in
bringing on the difficulty, as a defense, where he knew the
father had provoked the attack. Both must have been without
fault in bringing it on. Nor is a father justified in killing
the adversary of his son, where the son had provoked and
brought on the conflict in which he was placed in imminent
danger. A the plea of self-defense cannot be interposed by a
father who kills an officer rightfully seeking to arrest his
son, to prevent such arrest. Nor can one strike to relieve a
brother from peril unless the brother was free from fault in bringing on the difficulty which placed him in
peril. And if a person in whose defense a brother engaged was
in fault, and had not retreated or attempted to retreat, the
interference is not justifiable or excusable." The
following cases support the same view: Wood v. State
(Ala.) 29 So. 557, 86 Am. St. Rep. 71, and note;
Utterback v. Commonwealth (Ky.) 49 S.W. 479, 88 Am.
St. Rep. 329, and note; People v. Travis, 56 Cal.
251; Louisiana v. Giroux, 26 La. Ann. 582; Sharp
v. State, 19 Ohio, 389; State v. Johnson, 75
N.C. 174, 74 Am. St. Rep. 736,
note. There are some expressions in Wharton on Homicide and
other text-books which seem to be at variance with the text
above quoted, but they will be found to be merely a statement
of the rule as laid down in the...
