State v. Ferguson

• Decision Date: 03 April 1912
• Parties: STATE v. FERGUSON.
• Court: South Carolina Supreme Court

74 S.E. 502

91 S.C. 235

STATE v. FERGUSON.

Supreme Court of South Carolina

April 3, 1912

Appeal from General Sessions Circuit Court of Abbeville County; Geo W. Gage, Judge.

"To be officially reported."

J. H Ferguson was convicted of manslaughter, and he appeals. Reversed.

Wm. N Graydon and M. L. Bonham, for appellant. R. A. Cooper, for the State.

HYDRICK J.

Defendant was tried for the murder of his father. He was convicted of manslaughter, and appeals from the sentence. His contention was that the killing was accidental, and also that he was acting in self-defense, when the pistol which he pointed at his father to stop his deadly assault upon him was accidentally discharged. At the trial, his mother testified that the defendant and his father were quarrelling in defendant's house; that she made an assertion to which defendant replied: "You are a damn lie." This was the opprobrious language to which the presiding judge referred in his charge to the jury.

The exceptions are all to the charge, which follows, the language specifically excepted to being italicized:

"Gentlemen of the jury: The indictment charges two things, first, that James Ferguson killed John Ferguson; and, secondly, that he killed him with malice aforethought. If you are satisfied about the first issue that the son did kill the father, before you take up the other issue with what intent he did it you will refer to an issue which the son makes himself in the pleading. His plea is that he was excusable in doing it, because what he did he did in defense of himself, and while that which happened, to wit, the shooting and death of his father, was not anticipated or intended by him, yet he took steps to defend himself, and in the doing of which death came to his father. It is a peculiar plea; I have never seen one like it before; but I think I can state it to you clearly. In the first place, not every man can plead self-defense; only those who are without fault in bringing on the difficulty. Start at the inception of this difficulty; how was it brought on? Was it brought on by the wrongful conduct of the son? If the son used language towards the father, or towards the mother in the father's presence, of so opprobrious a character as was likely under all the circumstances to create a difficulty, and if a difficulty actually ensued from the use of that language, and in the difficulty the son killed the father, the son may not plead self-defense. I do not tell you that the son did bring on the difficulty; I do not tell you that the son used any language to bring it on; and I do not tell you that the death flowed out of the language in the difficulty. Those are questions for the jury, and the jury must find those facts. All that I tell you is that if you find those facts against the son, if you find that he was guilty of the use of opprobrious and blamable language, that such language might reasonably be expected to bring on a difficulty, that it actually did bring on the difficulty, and that the difficulty resulted in the death of the father, then the son cannot plead self-defense. If you find those facts against him, you rule self-defense out. If you find those facts for the son, then you go one step further. Now, the son was in his own house; he had the right to protect himself; he had the right to stand his own ground. Did the father assault the son with a knife? That is a pregnant issue in this case. Did the father have an open weapon in his hand, dangerous to life, and did he assault the son with it? Much of your verdict will depend upon how you find that issue. If he did not, the plea of self-defense falls to the ground. But if the father did have an open knife, and if he was about to cut the son, and if the son thought so--reasonably thought so--he had the right to do one of two things; he had the right to save his life. How? He had the right to save his life even by striking his father down, as lamentable a thing as that is, as awful a thing as that is--not in law I mean, I mean in society. A son, to save his life, even has the right, if he see proper to do it, to take his father's life; he has the right to slay his father. Now, if he has the right to slay his father, he has the right to use other means to prevent his father from killing him. If, instead of pointing the pistol at his father and shooting his father to save the felony of the father upon himself, he points the pistol at his father to bluff the father, to deter him, that is the same sort of right, and if the pistol goes off unwittingly, the case is not altered. His right cannot be minimized if the pistol went off unwittingly, when he would have been excused if it had gone off wittingly. So if you find those to be the facts, if you find that the old man, the father, assaulted the boy with an open knife, was about to cut him, and the son seized the pistol to bluff the father, and to save himself from death or serious bodily harm, and if he killed the father under those circumstances, you write a verdict of not guilty. But the true history of the case is for the jury. And I revert back to the fact: Did the father have the knife? Did the father draw the knife upon the son? Did the son believe the father was going to kill him, and did he reasonably believe it--would the ordinary man, like circumstanced, have come to the same conclusion and did the son believe the necessity was upon him to do what he did? The last thing a man must do is to kill. As I told you before, the son being in his own house, he did not have to retreat. Before a man kills his fellow, he must get out of the way; he must do everything to avoid that final tragedy, unless he be in his own house, and then he can stand his ground, and if the assailant comes upon him, he may stand and strike. Now, if this plea is made out, write a verdict of not guilty. The son has made the plea; he has set it up as a shield between him and the penalties of the law; and he must prove it. He must satisfy you by a preponderance of the testimony that the thing is as he pleads it, or he must do it by so strong a proof as to raise in your minds a reasonable doubt about his guilt. If you sustain the plea, find the son is excusable, say "not guilty." If you are unable to do that, if the testimony of the witnesses leads you to the sure conclusion that the son was without right in what he did, then you go one step further and inquire about the character of the killing.

"As you heard me tell a jury yesterday, there are two unlawful killings; one is called murder, and the other is called manslaughter. If one man kills another out of a malicious heart, it is murder. And a malicious heart, Mr. Foreman and gentlemen, is a heart that is full of sin; that is wrong with God and man. Malice--the law book's picture is black. Artists have tried to draw it--the picture of the human heart--and they picture the malicious heart in black, and they picture a lawful heart in white. You have got to judge of a man's heart by what he says and does, and by what you know of him, and what you know of yourselves, and what you know of human passion and human conduct. If the testimony in this case satisfies you that this man killed his father, killed him wrongfully, and killed him out of a malicious heart, you ought to say so. If the testimony leaves you in reasonable doubt about that, you ought to say so, and

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