State v. Irby
| Decision Date | 08 August 1932 |
| Docket Number | 13466. |
| Citation | 164 S.E. 912,166 S.C. 430 |
| Parties | STATE v. IRBY. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Spartanburg County William H. Grimball, Judge.
Les Irby was convicted of murder, and he appeals.
Reversed and remanded for a new trial.
L. K Jennings, E. W. Johnson, and Wm. Alton Crow, all of Spartanburg, for appellant.
Samuel R. Watt, Sol., of Spartanburg, for the State.
On January 4, 1932, at a court of general sessions for Spartanburg county, the defendant, Irby, was arraigned on an indictment charging him with the murder of one Ralph Kitchens. At the time of the arraignment, the court, being advised that he was without the benefit of counsel, appointed Messrs. Johnson, Jennings, and Crow, of the Spartanburg bar to defend him. When the case was called for trial on January 8, a motion for a continuance was made on the ground that it would be impossible for counsel, appointed to defend after the true bill was found, to get a preliminary hearing for the defendant, which he was entitled to under the law, if the case should be tried at that term. This motion being overruled, counsel asked that the case go over until the following Monday on the ground that they had not had sufficient time to prepare for trial. The request was refused, and the trial proceeded. The defendant was convicted of murder, and sentenced to die by electrocution. He now appeals to this court.
We shall first consider the contention that there was error in the refusal of the motion for a continuance. Section 936 of the Code of 1932 provides that a defendant shall be given a preliminary hearing upon written demand as therein provided, but that such demand shall be made at least ten days before the convening of the next general sessions court thereafter. The record before us discloses that the homicide occurred on November 30, 1930; defendant was soon thereafter arrested and charged with murder, but employed no counsel and made no effort to secure a preliminary hearing. It is not necessary that there shall be a preliminary hearing before a grand jury can indict a person charged with a crime. One may waive the right to such hearing by simply failing to ask for it, as was done in this case. The efforts of counsel to preserve to their client every legal right to which they thought him entitled are to be commended, but the fact that counsel were appointed after a true bill had been found by the grand jury would be no reason for a continuance of the case in order that the defendant might be given a preliminary hearing. Nor was there any error in the court's refusal to carry the case over until the following Monday. It appears that the real reason for this request was that counsel desired to use as a witness a woman who lived at Woodruff, and who, although summoned by the sheriff, was not present when the case was called. When the court was apprised of this situation, although ordering the case to immediate trial, he directed the sheriff to send for the witness at once in order that defendant might have the benefit of her testimony. Shortly thereafter she came into court voluntarily, and testified for the appellant; the trial judge granting counsel ample time for consultation with her before she was put on the stand. In the circumstances, we cannot see how the court's action resulted in any harm to the defendant.
Appellant challenges the applicability of section 908 of the 1932 Code, upon which the state relied as a justification of the arrest or attempted arrest of the defendant by the deceased, to the facts of this case, and in our view of the matter the decision must turn upon this point and the correctness of the judge's charge in relation thereto. This section reads as follows: "It shall be lawful for any citizen to arrest any person in the nighttime, by such efficient means as the darkness and the probability of his escape render necessary, even if his life should be thereby taken, in cases where he has committed a felony, or has entered a dwelling house with evil intent, or has broken or is breaking into an outhouse, with a view to plunder, or has in his possession stolen property, or, being under circumstances which raise just suspicion of his design to steal or to commit some felony, flees when he is hailed."
The pertinent facts, as we gather them from the record, may be briefly stated as follows: Some time after 12 o'clock on the night of November 30, 1930, the defendant, Irby, and two other negroes, Roy and Glover Sims, pursuant to a plan of the defendant, went to the home of one T. F. Charles, several miles from the city of Spartanburg, for the purpose of stealing chickens. When they arrived at the chicken house, which was about 150 yards from the dwelling, they broke in and stole chickens of the value of about $25. They then started back along the public highway towards Spartanburg, each carrying a sack of chickens. After having gone several miles, they saw two men, one C. W. Kitchens and his son Ralph, as it afterwards turned out, coming toward them. The witnesses are not in agreement as to what happened the moment the two parties discovered each other and thereafter. C. W. Kitchens testified that he was a special officer, holding a state constable's commission and employed by the P. & N. Railroad, but that his duties were not entirely confined to that company. He further testified that on the night in question he had his son Ralph helping him, although Ralph had never been sworn in as an officer; that he saw the three men approaching, each with a sack, and that, as they turned and ran, he put his flash-light on them, they dropped the sacks, and he heard the chickens "holler"; that, while he did not know they had stolen the chickens, he thought they had; that he called to them to "halt," and that he and Ralph, in order to stop them, fired their pistols into the bank on the side of the road, but that two of the men got away, the defendant, Irby, being overtaken by Ralph and thrown to the ground, about 100 yards from the place where the sacks were dropped; that when he arrived on the scene of the struggle he told the defendant that he was an officer and to consider himself under arrest, and then directed Ralph to let him up, the witness dropping his gun into the left pocket of his overcoat and taking his black-jack in his right hand; that the defendant then caught Ralph with his left hand and threw him to his knees and grabbed the witness with his right hand. whereupon the witness knocked him loose from Ralph with his black-jack and struck him over the head and told him to give up; but that about that time something happened and when he "came to" he found that his gun was gone and Ralph was lying on the ground calling for help; that Ralph was wounded by a pistol shot, from which he afterwards died; and that the witness himself was shot through the back of the neck and thereby rendered unconscious.
Roy Sims, who was with the defendant and participated in stealing the chickens. testilied for the state to the following effect: That the three negroes named went to the chicken house of T. F. Charles on the night in question, and broke in and stole a lot of chickens; that on their way back to Spartanburg the witness, who was walking behind the others saw two men meeting them; that he stopped and said to his companions, "Yonder comes two men"; that just then one of the men they were meeting turned his flash-light on them and they thereupon threw down their sacks and began to run in the opposite direction; that two or three shots were fired by the men behind them, the bullets passing close to the head of the witness; that in a few minutes he heard two shots,...
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