State v. Hendrix

• Decision Date: 01 May 1978
• Docket Number: No. 20672,20672
• Citation: 270 S.C. 653,244 S.E.2d 503
• Parties: The STATE, Respondent, v. Homer O. HENDRIX, Appellant.
• Court: South Carolina Supreme Court

Page 503

244 S.E.2d 503

270 S.C. 653

The STATE, Respondent, v. Homer O. HENDRIX, Appellant.

No. 20672.

Supreme Court of South Carolina.

May 1, 1978.

Eugene C. Griffith, of Blease, Griffith & Stone, Thomas H. Pope, of Pope & Schumpert, Newberry, and A. Frank Lever, Jr., Lexington, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Joseph R. Barker, Columbia, for respondent.

RHODES, Justice:

Appellant Homer O. Hendrix was convicted of voluntary manslaughter and sentenced to fifteen years imprisonment. Although several issues have been raised on this appeal, we need address only the lower court's refusal to direct a verdict in favor of the appellant since this issue is dispositive of this case. Finding that the appellant was entitled to a directed verdict, we reverse.

This case arose out of a tragic confrontation between Mr. Hendrix and Norman D. Cherry at Hendrix's lot on Lake Murray in Saluda County on Labor Day, September 1, 1975. On that day appellant and his children were having a family outing at their property on the shore of Lake Murray.

It is clear from the testimony that ill feelings had characterized the relationship between Mr. Hendrix and Mr. Cherry. These ill feelings produced a tension between the two that culminated in Mr. Cherry's shooting death.

A neighbor at the lake of both appellant and the deceased testified for the State on direct examination that he talked to appellant that afternoon prior to the shooting. The witness stated that appellant told him of a confrontation that had occurred earlier that day with the deceased at appellant's tomato patch. The witness testified appellant stated "that Mr. Cherry told him (appellant) they were going to have to fight to settle this thing." In reply appellant "told Mr. Cherry that he was going to go home and get a gun and from then on he would have a gun in his truck."

Shortly afterwards Harold Black, a friend and next door neighbor, and his son, Francis Wayne Black, observed appellant drive down the road past Mr. Black's house and turn around in the deceased's driveway. The deceased was not at home at the time. As appellant drove back up the road, he passed the deceased who was driving down the road. As the two passed each other, the deceased stopped, opened his door, backed up about a foot, and then drove forward toward his house. Appellant did not stop.

According to Mr. Black, the deceased went into his (Cherry's) house, stayed approximately ten minutes, got back into his truck and drove off.

Almost immediately thereafter, Mr. Black and his son got into their truck and drove off in the direction the deceased had taken. In Mr. Black's words "I told my boy 'let's go up the road, there's something fixing to happen' because Norman Cherry and Homer Hendrix wasn't getting along too good."

As they rode past appellant's lake lot they observed appellant and his son Richard sitting on the rear end of appellant's truck which was parked on appellant's lot. Both Blacks testified that appellant did nothing other than watch them go by. As they drove further down the road, the Blacks observed Russell Hendrix, appellant's grandson, getting a shotgun from appellant's house. This house was some distance down the road from appellant's lake lot.

The Blacks circled around, met the deceased and told him "that Homer Hendrix had gone to his house to get a gun."

The Blacks then drove to appellant's lake lot, stopped, got out of their vehicle and confronted appellant and his son. On cross examination Wayne Black stated that they stopped "to keep anything from happening."

According to the Blacks they went onto appellant's lot and Mr. Black accused Valjean Matthews, appellant's son-in-law, of going and getting appellant's gun, which Matthews denied. According to Mr. Black, Matthews pushed him and cursed him whereupon Mr. Black hit Matthews and a fight erupted between the two men.

Shortly after the Blacks arrived at appellant's lot, the deceased arrived in his truck, slid to a stop in the road, jumped out and advanced toward appellant. It was stipulated at trial that Cherry's blood alcohol was .208 per cent.

Appellant, who was standing next to his truck, reached into the cab of his truck, pulled out his shotgun, leveled it at the deceased and told him three times to "back off". The deceased immediately spun around and walked back to his truck, reached into the cab and drew out his shotgun, and walked straight back to where the appellant was standing.

The deceased told appellant to put down the shotgun and "fight like a man". Although witnesses for the State testified the deceased never pointed his gun at appellant, witnesses for the defense testified that the deceased pointed his shotgun at appellant's mid-section and told appellant, "Say your prayers, I'm going to kill you."

Another friend and neighbor of the deceased, Mrs. Doris Black, observed the commotion and approached the scene. When she saw the two men facing each other with shotguns, she screamed "Norman!" The deceased turned his head in the direction of the scream. As Cherry turned, appellant began firing. Appellant fired four times in rapid succession, killing Cherry.

Appellant was indicted for murder and convicted of the lesser included offense of voluntary manslaughter. At his trial appellant relied on the defense of self-defense but did not testify in his own behalf. Appellant contends the lower court erred by denying his motion for a directed verdict on the ground of self-defense.

In deciding whether the lower court erred in failing to direct a verdict in favor of a defendant in a criminal case, this Court must view the evidence in the light most favorable to the State. If there is any evidence, either direct or circumstantial, which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced, it is the lower court's duty to submit the case to the jury. Thus, in the present case, unless it can be said as a matter of law that self-defense was established, it was not error to submit the case to the jury.

Based upon the prior decisions of this Court, in order to establish self-defense, a defendant must ordinarily show:

(1) That he was without fault in bringing on the difficulty. State v. Jackson, 227 S.C. 271, 87 S.E.2d 681 (1955).

(2) That he actually believed he was in imminent danger of losing his life or of sustaining serious bodily injury, State v. Jackson, supra, or he actually was in imminent danger of losing his life or of sustaining serious bodily injury, State v. Hardin, 114 S.C. 280, 103 S.E. 557 (1920); State v. Miller, 73 S.C. 277, 53 S.E. 426 (1906). ¹

(3) If his defense is based on his actual belief of imminent danger, that a reasonable prudent man of ordinary firmness and courage would have entertained the same belief, State v. Jackson, supra, or if his defense is based on his being in actual and imminent danger, that "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," State v. Hardin, supra, 103 S.E. at 558.

(4) That he had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in the particular instance. State v. Jackson, supra.

We conclude that self-defense was established in this case and, as a matter of law, the appellant herein was entitled to a directed verdict of acquittal.

Beginning with the fourth element of self-defense, which is often called the "retreat doctrine", there is no question but that appellant was on his own land when the confrontation occurred. The trial judge charged the jury on this point and the State has admitted it. The law is well settled that "one attacked, without fault on his own part, on his own premises, has the right in establishing his plea of self-defense, to claim immunity from the law of retreat, which ordinarily is an essential element of that defense." State v. Hewitt, 205 S.C. 207, 31 S.E.2d 257, 258 (1944). Appellant had no duty to retreat.

Turning to the first element, we find nothing to indicate the appellant provoked the fatal altercation.

It was alleged by the State's witnesses and admitted by the defense witnesses that appellant sent his grandson to his (appellant's) home to fetch his shotgun. When the grandson returned with the weapon, appellant placed it on the seat in the cab of his truck. A man arming himself on his own land in a legal manner after he has been threatened is not evidence of his being at fault in bringing on the difficulty.

When the deceased arrived and got out of his truck and approached appellant, the appellant at that point pulled out the shotgun, pointed it at the deceased, and told him to "back off" three times. The only reasonable explanation for this action is that appellant, who had reason to expect trouble, because of Cherry's earlier threat that they would fight, was trying to avoid a fight. ² This would not constitute evidence of provocation. ³

The second and third elements are clearly established by the evidence. While we are unable to say what the appellant's actual state of mind was at the time the fatal shots were fired, ⁴ the conclusion that he was actually in immediate danger of losing his own life is inescapable. As set forth in the factual narrative, the relationship between the appellant and the deceased was characterized by ill feeling. Earlier in the day, the deceased told the appellant "they were going to have to fight to settle this thing". When the deceased arrived at the appellant's lot, he jumped out of his truck and advanced toward appellant who leveled his gun at the deceased and told him three times to "back off". The deceased immediately went to his truck and returned, his shotgun in hand, to confront the appellant. Although there is some controversy at this point as to exactly what...