State v. Foster

• Decision Date: 27 June 1903
• Citation: State v. Foster, 66 S.C. 469, 45 S.E. 1 (S.C. 1903)
• Parties: STATE v. FOSTER.
• Court: South Carolina Supreme Court

45 S.E. 1

66 S.C. 469

STATE v. FOSTER.

Supreme Court of South Carolina

June 27, 1903

Appeal from General Sessions Circuit Court of Greenwood County Buchanan, Judge.

Indictment against Julius Foster for murder.From sentence on verdict of guilty, with recommendation to mercy, defendant appeals.Affirmed.

Woods J., dissenting.

Graydon & Richardson, for appellant.Solicitor Sease, for the State.

JONES J.

The defendant, upon an indictment for the murder of Lewis White, was found guilty, with recommendation to mercy and sentenced to the penitentiary for life, from which judgment he now appeals upon exceptions to the charge to the jury, all other exceptions having been abandoned.

1.The fifth, sixth, and seventh exceptions relate to the charge as to self-defense.We quote the whole charge upon this subject, as follows:

"Self-defense is based upon the law of necessity.A person who sets it up must not have been guilty of any wrong in bringing about the difficulty, having no reasonable or palpable means of escape, but impressed with the overweening necessity that unless he strikes, and at once, his own life will be taken, or serious bodily harm will be inflicted upon his person, and strikes, and takes life.The danger must be actual and real, and the necessity must be imperious, or it must be so seemingly imperious and real as to have so impressed a man of ordinary courage and prudence, and he was so impressed.Why is that the rule?It is founded in the knowledge of human nature.Here comes a man with a firearm in his hand, possibly cocked, his eyes ablaze, his lips uttering threats, indicating, so far as a human being can see, the intent of another to take life; and the person acts upon those circumstances, and fires.It may turn out there was no load of shot or a shell in that gun, was not a thing in it, yet if a man of ordinary firmness and prudence and courage would have been so impressed that the necessity with these appearances was real, and acted upon those appearances, and took the life of a person who possibly was perpetrating a joke, that was not murder.That was not any crime.That man had no right to perpetrate that sort of a joke.Therefore the law says the danger must be actual, it must be there, and you must strike to prevent it.Why doesn't the law furnish a remedy?A person has a right to come to the courthouse, and have a man tried for an assault upon his person; but then it would be too late, as his life will have been taken.Therefore the law says he is excused if he strikes in necessary defense of his person, to prevent the taking of his own life or serious bodily harm committed upon his own person.Not having brought on the difficulty, and being guilty of no wrong in bringing on the difficulty, and having no reasonable or palpable means of escape--if so, he must avail himself of it--and impressed with the overweening necessity that, unless he does strike at once, his own life will be taken, or grievous bodily harm will be inflicted upon his person, and strikes and takes the life of his fellow being, that is self-defense.The danger to his life and limb must be there, and the necessity to strike must be imperious, and the assault must be impending, or the danger must be so seemingly pending as to have so impressed a man of ordinary courage, firmness, and prudence, and did so impress the man who sets it up.If that is made out, a case of self-defense is perfectly complete.Well, now the law of God and the law of nature justify a man in protecting his life and all those things which are incidental to life.They have a right to exist.The presumption is they have a right to continue to exist.The law of God says, 'Thou shalt not kill,' which means you shall not permit another to take your own life.You must not take his life, unless it is absolutely necessary.It is a crime to commit suicide--take your own life.It is a crime to take the life of a fellow being, unless the necessity is actual and real, or the necessity was so seemingly real as to have so impressed a man of ordinary courage, firmness, and prudence, and did so impress the man who sets it up.Murder is taking the life of a fellow being with malice aforethought, either express or implied.Manslaughter is taking the life of a fellow being in sudden heat and passion, superinduced upon a sufficient legal provocation.Self-defense is taking the life of a fellow being where it is necessary to do it to protect your own person; and to make out a case of self-defense you must show he was not guilty of any wrong in bringing about the difficulty.He must have no means of escape.If so, he must avail himself of it.If he has any possible means of escape, there was no necessity.His own life must be in danger, or grievous bodily harm is about to be committed upon his person.The danger must be there, actually and really there, or so seemingly actual and really there as would have so impressed a man of ordinary courage, firmness, and prudence, and did so impress the man who sets it up.That is self-defense."

The exceptions relate to that portion of the charge which we have italicized above.The fifth exception alleges that the charge in these words, "Self-defense is the taking the life of a fellow being where it was necessary to do it to protect your own person; and to make out a case of self-defense, you must show he was not guilty of any wrong in bringing about the difficulty," was erroneous (a) in leading the jury to think that there must have been an actual necessity, when it makes no difference whether the necessity really existed or not, if it appeared to the defendant, and would have appeared to a person of ordinary prudence and firmness, to exist; (b) in stating that the defendant must show that he was not guilty of any wrong in bringing about the difficulty, whereas the law only requires of the defendant who pleads self-defense that he shall show that he was without fault in bringing about the difficulty, the meaning being that the defendant must show that he gave the deceased no legal provocation to make an assault upon him."

With reference to specification "a," it is manifest, from a reading of the entire charge, that the jury were repeatedly instructed in accordance with appellant's contention.With reference to specification "b,"we do not think that there is any material difference in the expressions, "without any wrong in bringing about the difficulty," and "without fault in bringing about the difficulty."The meaning of either of such expressions in the law of self-defense is that the prisoner must not have been the aggressor and provoked the difficulty himself.

The sixth and seventh exceptions assign error to the charge "He must have no means of escape.If so, he must avail himself of it.If he has any possible means of escape, there was no necessity."It is contended that this...