State v. Hewitt

• Decision Date: 17 August 1944
• Docket Number: 15673.
• Parties: STATE v. HEWITT et al.
• Court: South Carolina Supreme Court

31 S.E.2d 257

205 S.C. 207

STATE v. HEWITT et al.

No. 15673.

Supreme Court of South Carolina

August 17, 1944

Wyche Burgess & Wofford and Culbertson & Brown, all of Greenville, for appellants.

W A. Bull, Sol., and W. E. Bowen, both of Greenville, for respondent.

FISHBURNE Justice.

John C Hewitt, his wife, Veva Hewitt, and their two sons, Jasper Hewitt, aged fifteen, and Geno Hewitt, aged thirteen, were indicted in the Court of General Sessions for Greenville County for the murder of J. W. King. Upon trial, Jasper Hewitt was acquitted. John C. Hewitt and Veva Hewitt were found guilty of manslaughter, and sentenced to ten years imprisonment; Geno Hewitt was convicted of manslaughter, with recommendation to mercy, and was sentenced to confinement in the South Carolina School for Boys until he should reach the age of twenty-one years. From the judgment and sentence of the Court, John C. Hewitt, Veva Hewitt, and Geno Hewitt have appealed.

John C. Hewitt and the deceased, J. W. King, were near neighbors, living upon their respective farms located on opposite sides of a public highway. Ill feeling had characterized the relations between them and their families for more than a year prior to the homicide. On June 16, 1943, this enmity culminated in the slaying of King, who at the time was standing in the highway opposite the entrance to the driveway leading into the yard of the Hewitts.

The theory of the defense, supported by evidence, was that throughout the violent altercation which preceded the homicide, and at the time of the homicide, the appellants were upon their own premises, within the curtilage, and therefore under no duty to retreat. The testimony for the defense tended to show that the deceased advanced upon Mrs. Veva Hewitt, wife of John C. Hewitt, with a drawn knife, while she was standing within her yard near the driveway. To protect herself, she picked up a rock and threw it at the deceased hitting him somewhere upon the body, whereupon he dropped the knife and proceeded to throw large rocks at her, one of which grazed her body. It was during this assault that King, who continued to stand in the highway, was shot, either by John C. Hewitt or Geno Hewitt, or by both, in the defense of Veva Hewitt, who they contended was in imminent danger of death or serious bodily harm.

The trial Judge, after charging the jury three elements of self defense, continued with this instruction, to which exception is taken:

"The fourth is, that he must avoid it (the taking of human life) if he reasonably can. The law does not permit the taking of human life if it can be reasonably avoided. The law is that a person, in order to avoid taking human life, must retreat, unless he is on his own ground; that is if he can reasonably avoid it; that is, unless it would apparently increase his danger."

Under the law of self defense, a person may not only take life in his own defense but, by virtue of the rule of the common law, he may also do so in defense of another who bears to him the relationship of wife, parent or child. 26 Am.Jur., Sec. 158, Page 265, 40 C.J.S., Homicide, § 108, subsec. b, page 969; State v. Francis, 152 S.C. 17, 149 S.E. 348, 70 A.L.R. 1133.

Dependent upon the existing circumstances of the particular occasion, a person acting in defense of his wife or parent, is in the same situation and upon the same plane as those who act in defense of themselves. The facts which excuse the killing in defense of self likewise excuse a killing in defense of a member of the family; and the right of the husband to defend his wife is coextensive with the right of the wife to defend herself. 26 Am.Jur., Sec. 159, Page 266; 40 C.J.S., Homicide, § 108, subsec. a, page 968; State v. Francis, 152 S.C. 17, 149 S.E. 348, 70 A.L.R. 1133; State v. Petit, 144 S.C. 452, 142 S.E. 725; State v. Hays, 121 S.C. 163, 113 S.E. 362.

There were two encounters. In the first, to which we have referred, King was making no attack upon the appellants, John C. Hewitt and his son, Geno Hewitt. Although John C. Hewitt relied upon his right to defend his wife, Veva Hewitt, and the appellant, Geno Hewitt, relied upon his right to defend his mother, the Court inadvertently overlooked this theory of the defense in its general charge, and confined the consideration of the jury to the issue of whether or not the homicide was committed solely in their own defense. The second encounter which followed the first in ten or fifteen minutes involved John C. Hewitt alone, and he pleaded defense of self, wife and children.

The prejudicial character of the error was emphasized when, later in the charge, the jury was told: "I charge you that the defendants pleading self defense must show by the greater weight or preponderance of the evidence the four elements of self defense ***."

Error is also assigned because the Court in the above quoted instruction failed to clearly and fully instruct the jury that a person is not obliged to retreat even though he can do so without increasing his danger, where, being without fault in bringing on the difficulty, he is assaulted while on his own premises.

The law of this jurisdiction declared in many decisions, is 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...