State v. Crosby

• Citation: 70 S.E. 440,88 S.C. 98
• Parties: STATE v. CROSBY.
• Decision Date: 09 March 1911
• Court: South Carolina Supreme Court

70 S.E. 440

88 S.C. 98

STATE v. CROSBY.

Supreme Court of South Carolina

March 9, 1911

Appeal from General Sessions Circuit Court of Anderson County; John S. Wilson, Judge.

John Crosby was convicted of murder, and he appeals. Affirmed.

The following are defendant's exceptions:

"(1) That his honor erred in refusing the motion for continuance upon the grounds upon which it is based: (a) Since defendant made a showing within the requirements of the rule of court, it was the first term after the homicide the witness Bailey was a material witness, a white man who had been duly bound over, and under such circumstances it was beyond the discretion of the trial judge to refuse the continuance; (b) and since it amounted to a denial of defendant's constitutional right (Const. 1895, art. 1 § 18) to have compulsory process for obtaining the personal attendance of his witnesses to grant such process and immediately to proceed with the trial without opportunity for a return thereon.

"(2) That his honor erred in commenting upon the truthfulness or credibility of the witness A. M. Bailey, in the hearing of the jurors, in such a way as to give them his opinion of the weight of the testimony of said witness, this comment being in direct violation of the spirit of the constitutional provision against judges charging the jury with respect to matters of fact, or in violation of both the letter and the spirit of article 5, § 26, Const. 1895.

"(3) That his honor erred in excluding testimony of John Crosby, the defendant, as to Ed Acker's general boast made to him of his immoral dealings with women, this being a circumstance to make him more suspicious of Acker and one among other circumstances bearing on the question of provocation, upon the honesty of his belief as to adulterous intention or conduct, and tending to bring about sudden heat and passion in the defendant and to excite his jealousy. And his honor erred in refusing a motion for a new trial upon this ground.

"(4) That his honor erred in refusing to permit defendant's counsel to cross-examine the witness S. N. Pearman in regard to particular acts of dishonesty and untruthfulness upon the part of the deceased, Ed Acker: (1) Because the witness was adverse and hostile, and it is permissible to cross-examine even one's own witness when he appears to be hostile. (2) Because it was permissible to ask the witness any question that could have been asked the said Acker if he had been upon the stand, since he was speaking through the lips of the witness Pearman. (3) Witness having testified his general reputation was good, it was competent to ask him about specific acts to test his bias or accuracy. And his honor erred in refusing the motion for a new trial on this ground.

"(5) That his honor erred in his charge upon self-defense. His honor charged as follows: 'What is self-defense? It is a right that our law recognizes, and I hope always will recognize. The very term explains itself--defending yourself, and that means not only your person, but your wife and children, your parents, your kin in the right. The law says that you have the right to defend them. Here are the elements necessary to make out self-defense: First, the party pleading self-defense must be without fault in bringing on the difficulty. Now that is good hard common sense. A man cannot go by words or acts bring on the difficulty, and, when he gets into a close place and fears he is going to be killed or receive serious bodily harm, slay his fellow man, and then plead self-defense. He must be without fault in bringing on the difficulty. That is the first step. A man cannot provoke a difficulty, bring about the condition and kill his fellow man, and say he was without fault in bringing on the difficulty. The next step, that he himself in the opinion of the jury must have honestly believed that he was in danger of losing his life, or in danger of receiving serious bodily harm. And third, the jury must come to the conclusion from the evidence that a person of ordinary firmness and reason would have been warranted in coming to that conclusion under the circumstances. That is the standard, not what any unusually brave, bold, daring person would do, nor what a timid, scarey, cowardly person would do on the other hand, but what a person of ordinary firmness, reason, and prudence in the opinion of the jury would have done under the circumstances. Fourth and last, and there must be no reasonably safe way for the person pleading self-defense to escape. The law says, if a man can do so with reasonable safety to himself, he must do it, and not take the life of his fellow man, if he can with reasonable safety to himself avoid it. The law does not mean by that, that in every case a man must turn his back and run. But the law says, if he can with reasonable safety to himself avoid taking human life, he must do it.' The first error complained of here is this: Under this rule, a man attacked in his own yard or domicile (a) may be free from fault in bringing on the difficulty, (b) may honestly believe that he is in danger of death or serious bodily harm, (c) may be justified under the law in so believing, and yet he must run or retreat if there is a reasonably safe way of escaping; whereas, under such circumstances, a man need not retreat or run, but may stand his ground. Under the conceded fact that defendant was at his own home, this charge is incorrect as a matter of law, and also wholly inapplicable to this case, and strongly tended therefore to confuse the jury. The second error in the above is this: The charge denies one the right to stand his ground where he has the actual ability to retreat with reasonable safety to himself, when all that the law requires even where a man is not in his own yard or in his own home is that it must actually appear to him that he cannot retreat with reasonable safety to himself.

"(6) That his honor erred in charging the jury as an alternative definition of malice the following: 'Another definition is that it is the willful and intentional doing of a wrongful act, and the person knowing his act to be wrong, knowing it to be against the law, and willfully does it, the law says when a man does that he does it maliciously.' The error consisting in this (a) that as a definition of malice this may be applicable to the law of torts, but it is not a definition of malice in the law of murder; and (b) although an act may be done willfully or intentionally, and the person doing it knows it to be wrong and against the law, it is not necessarily malicious as that term is used in in the law of murder, and a killing thus willfully done could be manslaughter; and (c) it is error to thus define malice without also stating that such act must be without justification, extenuation or excuse, this being an essential part of the definition of malice in this connection.

"(7) Because his honor erred in charging the jury as follows: 'Malice is defined to be a term of art meaning wickedness. When you say a man does a thing with a malicious heart, it means a heart devoid of social duty and fatally bent upon mischief.' The error consists in charging that malice means wickedness, without the necessary qualification 'excluding a just cause or excuse.'

"(8) That his honor erred in charging as he did upon the issue as to provocation by mere words, when upon the testimony, there was no such issue in the case, said charge tending to mislead and confuse the jury, especially in the absence of a modification to the effect that such is not the rule if the mere words were sufficient to lead a man of ordinary reason and firmness to believe that they charged immoral relations with defendant's wife or led him to believe that deceased had just had, or was about to have, such relations. And that his Honor erred in refusing a new trial upon this ground.

"(9) That his honor erred in charging upon the issue as to whether defendant committed the alleged crime while 'crazy drunk,' when, under the testimony, there was no such issue in the case, and said charge tended to mislead and confuse the jury. And that his honor erred in refusing a new trial upon this ground.

"(10) That his honor erred in charging as follows: 'One of the pleas is self-defense. That has got to be made out fully because it is for the jury to say whether it is made out of this case'--the error being that in so charging his honor required this plea to conform to a higher and different standard from that required by law, to wit, that it be proved by the preponderance of the evidence. And that his honor erred in refusing a new trial upon this ground.

"(11) That his honor erred in charging the jury as follows: 'Now, drunkenness. In law drunkenness is no excuse for crime. A person may go out upon the street to-day and get beastly drunk, and the morning after he may not realize what he has done. If he is just simply drunk from effects of whisky, the law says that is no excuse. But where a person drinks excessively and has become diseased--if he drinks so much that he has become diseased, and if the person is insane on account of being so diseased, then the law excuses him, and says he is not responsible for his acts. I don't mean just when a person is simply crazy drunk. I don't mean that--understand that.' And also in charging in connection with defendant's fourth request, in connection with the meaning of the words 'temporarily insane,' the following: 'I will try to explain to you what I mean

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