State v. Dixon

• Decision Date: 29 June 1936
• Docket Number: 14322.
• Citation: 186 S.E. 531,181 S.C. 1
• Parties: STATE v. DIXON.
• Court: South Carolina Supreme Court

186 S.E. 531

181 S.C. 1

STATE v. DIXON.

No. 14322.

Supreme Court of South Carolina

June 29, 1936

Appeal from General Sessions Circuit Court of Greenville County; T S. Sease, Judge.

Harold Dixon was convicted of involuntary manslaughter, and he appeals.

Affirmed.

Benjamin A. Bolt, of Greenville, for appellant.

J. G Leatherwood, Sol., and T. A. Wofford, Asst. Sol., both of Greenville, for the State.

BONHAM Justice.

The appellant was convicted, before Judge Sease and by a jury, of involuntary manslaughter, and appeals from the judgment and sentence thereon.

It appears from the record that on the night of April 14, 1935 the appellant, with Fred Williams and Marie Fitzgerald, was riding in an automobile on the highway between Greenville and Greer. Near the western limits of the town of Greer the automobile ran off the highway into a ditch and struck a telephone pole. Fred Williams suffered injuries from which he died. The defendant was charged with murder. On the trial the solicitor announced that he did not ask a verdict of more than involuntary manslaughter. There was testimony that all of the occupants of the car were drinking, and more or less under the influence of whisky.

The appeal stands upon eight exceptions which challenge alleged errors in the charge of the presiding judge. In his brief appellant's attorney states the questions to be determined under five heads. We think they may be reduced to three, viz.:

1. Did the judge correctly charge the degree and nature of the negligence it was necessary for the state to prove before it could ask a conviction?

2. Did his honor err in charging that the violation of a statute is some evidence of gross negligence and wantonness?

3. Did his honor charge on the facts?

The gravamen of the first complaint is that the presiding judge instructed the jury that on a trial on a charge of homicide limited to involuntary manslaughter, if the death was caused by use of a deadly weapon it was only necessary for the state to prove that the deadly weapon was handled negligently and that this negligence was the proximate cause of the death; that if the death was not caused by a deadly instrumentality, it was necessary for the state to prove gross negligence on the part of the defendant. Appellant complains that the court erred in saying there were two doctrines to apply in cases of involuntary manslaughter, that of mere negligence and that of gross negligence, dependent upon whether the instrumentality used was deadly or not. In other words, the appellant contends that the court should have charged without modification his requests to the effect that before he could be convicted of involuntary manslaughter the state must prove him guilty of gross negligence.

We think there was no error on the part of the presiding judge thereabout.

There is a well-defined line of cases in our own Court which hold that: "person causing another's death by negligent use of deadly weapon is guilty of involuntary manslaughter unless negligence is so wanton as to make killing murder." State v. Quick, 168 S.C. 76, 167 S.E. 19. State v. Gilliam, 66 S.C. 419, 45 S.E. 6. It was said in the Gilliam Case: "Instruction that homicide caused by the negligent use of a pistol is manslaughter, is correct."

In the case of State v. Revels, 86 S.C. 213, 68 S.E. 523, the defendant was convicted of involuntary manslaughter. It appears that the death was caused by the firing of a loaded gun, for the possession of which the defendant and another man were contending. The court held that the testimony warranted the conclusion that the death was caused by the negligent handling of a loaded gun, and that this fell within the definition of "involuntary manslaughter" as it was laid down in the case of State v. Gilliam, supra.

In the case of State v. Tucker, 86 S.C. 211, 68 S.E. 523, 524, it appears that the defendant, a boy, got hold of his father's pistol and was "projecting" around with it in the room with other children, one of whom he threatened to shoot. He testified that he was sitting down rubbing the pistol; that he did not know the pistol was loaded, or that his brother was in front of him when he pulled the trigger without meaning to do so. The appeal turned upon the allegation that the trial judge charged "that criminal carelessness upon which a verdict of guilty of involuntary manslaughter could be based was to be determined by the standard of simple negligence or carelessness or mere inadvertence, whereas it is submitted that criminal carelessness involves that degree of lack of care amounting to recklessness or gross carelessness." The court said: "The point raised has been expressly ruled against appellant's contention in the case of State v. Gilliam, 66 S.C. [419] 423, 45 S.E. 6, which sustained a charge like the one complained of, and held that a person who causes another's death by the negligent use of a pistol or gun is guilty of manslaughter, unless the negligence is so wanton as to make the killing murder."

In the case of State v. Causer, 87 S.C. 516, 70 S.E. 161, the record discloses that the appellant, a boy of eleven years, was engaged with the deceased, another boy of about the same age, in a scuffle for the possession of a shotgun; the defendant picked it up and put a shell into it, pointed it at deceased, who was advancing on him, and told him not to come any further; the gun was fired, causing the death of the other lad. The defendant's defense was that the deceased was pointing the gun at the two small boys; that he took it away from him and was walking off with it when in some unexplained way it went off and deceased was shot. The court said: "The main points involved in this appeal are, first, whether there may be a conviction for involuntary manslaughter under an indictment for murder in the usual form; and, second, whether the negligent handling of a loaded gun causing death will support a verdict for involuntary manslaughter. Both these questions were decided in the affirmative and against appellant's view in the cases of State v. Gilliam, 66 S.C. [419] 422, 45 S.E. 6, State v. Tucker, 86 S.C. 211, 68 S.E. 523, and State v. Revels, 86 S.C. 213, 68 S.E. 523, and we are satisfied that the decisions were correct."

In the case of the State v. McCalla, 101 S.C. 303, 85 S.E. 720, the court's opinion is thus summarized in the syllabus: "One guilty of only ordinary negligence in handling a pistol, which results in the death of a bystander, may be convicted of involuntary manslaughter."

It is unnecessary to cite other authorities. There can be no question that it is the established rule in this jurisdiction that one who causes the death of another by the negligent use of a deadly weapon or instrumentality may be convicted of involuntary manslaughter.

Appellant seeks to find support for his contention in the cases of State v. Clardy, 73 S.C. 340, 53 S.E. 493, and State v. Davis, 128 S.C. 265, 122 S.E. 770. But there is no comfort for him there. In the Clardy Case the question was one of voluntary manslaughter. In the Davis Case the only evidence in the record was to the effect that the injury which caused the death of the deceased-the wife of defendant-was caused by his stumbling over a chair as he attempted to carry her after she had fallen in an epileptic seizure. The ultimate of that decision is that it is error to say that in every case where death is due to simple negligence one may be convicted of manslaughter. In that case there was no deadly nor dangerous instrumentality.

In the present case the appellant contends that the trial judge erred in modifying his requests to charge to the effect that defendant could be convicted only upon proof of gross negligence, by saying there were two rules applicable, to wit, that which holds that one may be convicted upon proof of negligence in the use of a deadly weapon which causes death and one which requires proof of gross negligence where death is caused by an instrumentality, not inherently dangerous or deadly. In this case it is charged that the death was caused by the wrecking of an automobile driven by appellant in a reckless manner while he was under the influence of intoxicating liquors. We may say, parenthetically, that there was ample evidence to sustain the charge. It is conceded that the court may instruct the jury that one who causes the death of another by the negligent...