State v. Davis

• Decision Date: 07 September 1898
• Citation: 53 S.C. 150,31 S.E. 62
• Parties: STATE. v. DAVIS.
• Court: South Carolina Supreme Court

31 S.E. 62

53 S.C. 150

STATE.

v.DAVIS.

Supreme Court of South Carolina.

Sept. 7, 1898.

Criminal Law—Charges on the Facts—Harmless Error—Homicide—Manslaughter—Authority to Arrest—Right of Resistance.

1. Under the provision of the constitution forbidding judges to charge juries with respect to matters of fact, an instruction that if the jury-have a doubt such as a reasonable man would entertain in affairs of his own concern, "under the facts and evidence as strong as that in this case, " that would be a reasonable doubt, is erroneous.

2. Where accused is on trial for. killing one who, having detected him in stealing from a money drawer, attempted to arrest him, it is a violation of the constitutional provision forbidding judges to charge juries with respect to matters of fact to instruct that "in this case the question of the right to make an arrest cannot arise."

3. Where accused, on being discovered in the commission of larceny, was seized by deceased, and in the struggle deceased was killed, it was error to charge that manslaughter from accidental but negligent killing could not arise in the case.

4. Where accused was caught in the act of stealing by the owner of the property, and in the struggle for its recovery the owner was killed, the statement of the court at the outset of an instruction that the right of arrest did not arise in the case was harmless, where the court further stated that, no felony having been committed, an arrest by deceased as a private individual without a warrant would have been illegal.

5. One restrained of his liberty under an illegal arrest may use necessary force, even to the taking of life, to make his escape.

6. Where one is caught in the act of stealing, the owner of the property is authorized to arrest him, and regain possession of the property; and this regardless of the value of the property.

Appeal from common pleas circuit court of Fairfield county; J. C. Klugh, Judge.

Henry Davis was convicted of murder, and he appeals. Reversed.

J. E. McDonald and Jas. W. Hanahan, for appellant.

J. K. Henry, for the State.

POPE, J. This is the second time this case has been before this court on appeal. 27 S. E. 905. It seems that the appellant was again convicted of the murder of James E. Suber by a jury in Fairfield county. The grounds of appeal allege that the circuit judge, in his charge to the jury, commented on the facts, in violation of that provision of the constitution which interdicts such a course. By the brief it appears that the circuit judge used this language: "Now, in considering this whole case, Mr. Foreman and gentlemen, if you have a reasonable doubt of the guilt of the accused, if you have a doubt in considering the testimony which is well founded, —a doubt such as a reasonable and prudent man would entertain in affairs of his own concern, —under the facts and evidence as strong as that in this case, that would be a reasonable doubt, " etc. (Italics ours.) And also in his charge he said, "In this case the question of the right to make an arrest cannot arise." As to the first quotation, it is evident that the circuit Judge was betrayed into an expression of his opinion upon the weight of the testimony. So, also, in the second quotation, it appears that unwittingly the circuit judge suffered himself to state what was his inference from the testimony which had been offered. Such a course as to either of the questions was not open to the judge. By the constitution he was debarred this privilege, and both instances present reversible error. This disposes of the second and fourth grounds of appeal.

Another question is as to the power of the circuit judge in his charge to limit the inquiry of the jury in the application of the facts to the crime of manslaughter by declaring that manslaughter from the accidental but negligent killing of a human creature could not arise in this case. This was error. It is but due to the circuit judge to state that his charge in laying down the principles of law touching murder, manslaughter, and self-defense were admissibly put, and it is to be regretted that these mistakes have occurred.

The last question presented by the appeal is that relating to an alleged error in the circuit judge in his...