State v. Hardin

• Decision Date: 28 June 1920
• Docket Number: 10437.
• Parties: STATE v. HARDIN.
• Court: South Carolina Supreme Court

103 S.E. 557

114 S.C. 280

STATE v. HARDIN.

No. 10437.

Supreme Court of South Carolina

June 28, 1920

Appeal from Common Pleas Circuit Court of Cherokee County; Frank B Gary, Judge.

W. P Hardin was convicted of manslaughter, and he appeals. Affirmed.

The court's charge, defendant's requests to charge, and the exceptions, referred to in opinion, follow:

Judge's Charge.

Mr. Foreman and Gentlemen of the Jury: In the trial of a case, as we are now, the law imposes certain duties on you and imposes certain duties on me. In reaching a verdict in a case the law makes you the sole judges of the fact, the sole judges of what the facts are. It prohibits me from even mentioning any opinion I may have as to the facts. It imposes upon me the duty of expounding to you the law of the case. It shall be my endeavor not to invade your province, and I assume you will not invade my province, but will accept the law as I give it to you.

This is a case in which the state of South Carolina charges this defendant with the felonious killing of the deceased. The state charges that he feloniously took the life of the deceased. He has pleaded "not guilty," and interposes the plea of "self-defense," the plea of what is known as "self-defense," and upon that plea he assumes the burden of proof.

Before the state is entitled to a verdict it must satisfy you beyond a reasonable doubt that the defendant is guilty as charged in the indictment. Beyond a reasonable doubt means a substantial doubt growing out of the evidence, not a fanciful or whimsical doubt, because you can have that kind of a doubt about anything. If from the evidence you have a reasonable doubt as to whether or not the defendant is guilty as charged in the indictment, it is your duty to acquit him. If from the evidence you have a reasonable doubt as to whether or not he has established his plea of self-defense, it is your duty to acquit him. The plea of self-defense is a perfect defense when it is made out.

The state charges this defendant with the felonious killing of the deceased. The felonious killing of a human being is either murder or manslaughter. That is the only kind of killing the law undertakes to inflict punishment for. Every killing of a human being is justifiable, excusable, or felonious. Where an officer takes the life of a human being in the performance of a duty imposed on him by law, that is what is known in the law as justifiable killing. There is no question of that kind in this case. Excusable killing is that which takes place under such circumstances that the party cannot strictly be said to have taken the life of the deceased willfully and intentionally. The question for you is, Was this killing an excusable or felonious killing? As I told you a moment ago, a felonious killing is either a murder or manslaughter. Murder is the felonious killing of a human being with malice. Malice may be either express, or it may be implied from the use of a deadly weapon. Express malice is manifested by some outward act--lying in wait, making threat to take his life, or something of that kind. Implied malice is such as you have a right to infer from the use of a deadly weapon calculated to inflict death or serious bodily harm and when nothing else appears, you have a right to infer that such a killing was a felonious killing, and done in malice. (If it appears that there was an intentional killing, if that appears from the evidence, and it was done with a weapon calculated to do serious bodily harm or to take one's life, you have a right to infer it was accompanied by malice or a felonious killing.) Whether the malice is implied or whether it is expressed, if malice accompanies the intentional or felonious killing of a human being, it is murder.

The other form of felonious killing is manslaughter; that is, the unlawful or felonious killing of a human being without malice. The law recognizes there are occasions in a man's life where he may be so situated as to lose control of himself under sufficient provocation, and he acts from impulse rather than premeditation or design. In a case of that kind the law would not excuse him--it would not say he is not to be punished, but would not visit the extreme penalty of the law on him as it would in the case of a felonious killing accompanied by malice. But, to give you a familiar illustration (I find I can always tell a jury better what the law is by an illustration and not expressing my opinion as to the facts): If I approach you and spit in your face or your ear, or pull your nose, that is calculated to cause you to lose control of yourself. In such a case the law would not excuse you, if under the sudden smart of such an insult, you took my life, but knows you are calculated to lose control of yourself under such circumstances, and would recognize it as an insult, and would call it manslaughter, and punish you accordingly if you took human life under such circumstances.

In this case you are relieved of the necessity of determining whether or not there has been a homicide, and you are relieved of the necessity of determining who committed it. The defendant has admitted that he took the life of the deceased intentionally with a deadly weapon. Now, then, he says, While I did that, I did it under such circumstances as the law will excuse--I did it in self-defense, and on that defense he assumes that burden of proof. The law does not require him to establish it by the same strict degree of proof as the state is required to prove his guilt, but says he must prove it by the preponderance or the greater weight of the evidence--not necessarily by the greater number of witnesses--there may be one on the side you believe against a dozen on the other side you don't believe. The law says he must establish his plea of self-defense by the preponderance, the greater weight of the evidence--the evidence on his side must outweigh that on the side of the state. If he has done that, he has established his plea of self-defense.

There are four essential, prerequisite elements entering into the plea of self-defense The law requires him to satisfy you by the preponderance of the evidence on all these four elements. If he satisfies you on three of them, and fails on any one of them, his plea of self-defense falls to the ground. He must be without fault in bringing on the difficulty. No man can bring on a difficulty and successfully plead necessity for taking human life. He must be without fault in bringing on the difficulty. Has the defendant shown you by the greater weight of the evidence he was without fault in bringing on this immediate difficulty, and was he without fault in bringing on this immediate difficulty? If so, he has not yet established his plea of self-defense. He must go a step further. He must show you that at the time he struck the fatal blow he was in danger of receiving serious bodily harm or death, and it was necessary to take the life of his assailant at the time he struck the fatal blow--it was necessary, or it appeared to be necessary, to strike the fatal blow in order to avert serious injury to himself or to avoid losing his own life. If he has shown you that, he must yet go a step further and show that the circumstances at the time--the circumstances were such as would warrant a man of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm, or losing his own life. The test is not whether an unusually timid or an unusually brave man would have been so warranted--were the circumstances such as would warrant a man of ordinary

firmness, prudence, and courage in coming to the same conclusion at the time the fatal blow was struck, in concluding at the time the fatal blow was struck that it was necessary, or appeared to be necessary, to strike the fatal blow in order to prevent serious injury or death to the one assailed.

A person has a right to act on the appearance of danger. For illustration, if one should point an unloaded gun at you at a distance of 10 or 12 steps, though the gun might be unloaded and though there might not be any actual danger, you would have a right to act on appearances. A man must believe at the time it was necessary, or it must have appeared to be necessary, and the circumstances must be such as to warrant that conclusion in the mind of a person of ordinary reason, prudence, and courage.

If he has satisfied you of that, he has got to go a step further and show you that he had no other probable means of escape except to take the life of his assailant. The law does not permit one to take human life lightly. If by retreating he can avoid taking human life without increasing his own danger of receiving serious bodily harm or losing his own life, he must do it. When a man is in his own house, he need not retreat. The imaginary wall to which the law says he must retreat is immediately behind his back, and, when by retreating he would increase his danger, he need not retreat. In olden times, when the first law books were written, the law said that before a man could strike he must retreat to the wall. In those times they fought with sticks and stones and javelins, and, if he retreated to the wall, he might then turn and strike and strike to the death; but he must avoid taking human life, if he can do it by stepping aside or retreating, provided he does not increase his own danger thereby. The law does not require him to put himself in any worse condition or position. A man must have no other probable means of escape except to take the life of his assailant. These are the four elements of self-defense. If he has failed on any one of them, he has failed to establish his plea of self-defense. If you have a reasonable doubt as to whether or not he has made out his

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