State v. McGee

• Decision Date: 04 October 1937
• Docket Number: 14534.
• Citation: 193 S.E. 303,185 S.C. 184
• Parties: STATE v. McGEE.
• Court: South Carolina Supreme Court

193 S.E. 303

185 S.C. 184

STATE v. McGEE.

No. 14534.

Supreme Court of South Carolina

October 4, 1937

Appeal from General Sessions Circuit Court of Florence County; E. C Dennis, Judge.

Archie McGee was convicted of manslaughter, and he appeals.

Affirmed.

C. T McDonald, of Florence, and L. M. Gasque, of Marion, for appellant.

G Lloyd Ford, of Conway, and P. H. McEachin, of Florence, for the State.

FISHBURNE Justice.

The defendant, Archie McGee, was tried for murder in the court of general sessions for Florence county, was convicted of manslaughter, and was sentenced to a term of 10 years. His exceptions on appeal to this court assign error to the trial judge on his rulings with reference to the admission and the exclusion of evidence, and to certain omissions in his charge to the jury. Error is also assigned because of the refusal of a motion for a new trial.

It is first charged that the court erred in not allowing the defendant's counsel, while cross-examining the state's witness, J. D. Ellis, to question him as to what he swore at the inquest, for the purpose of showing variance between his testimony at the trial and his testimony at the inquest. Apparently, this exception has been taken under a misapprehension. The trial judge made no ruling which prevented this line of examination. Defendant's counsel, after repeating to the witness certain testimony which had been given by him while testifying at the inquest, all of which he admitted giving, was interrupted by the court, with the inquiry, "Are you undertaking to contradict him?" To which counsel replied, "That is part of the testimony, there is some I want.?7D The trial judge then remarked, "Let's get to what you want." The examination then continued, without any ruling on the part of the court on the admissibility of the evidence adduced or sought, nor did the court in any way otherwise limit the scope of the examination.

Error is alleged because the trial judge refused to allow two of the state's witnesses, McCain and Bridges, upon cross-examination, to testify as to previous difficulties between the defendant and the deceased. When this inquiry was commenced, objection was made by the solicitor to any testimony which would go into the details of such difficulties; it being contended that the defense could prove that there was bad blood between the deceased and the defendant, and that they had had antecedent physical encounters, but that testimony as to the details would not be competent. The record shows that the court permitted these witnesses to state that former difficulties had taken place between the parties, but excluded testimony as to details. Not only at this stage of the trial, but at an earlier stage, the court ruled that testimony was admissible as to previous difficulties, for the purpose of showing the animus which existed between the parties. This holding was in keeping with the well-recognized rule. State v. Graham, 161 S.C. 362, 159 S.E. 838.

Immediately after the court's ruling that testimony relating to previous difficulties between the deceased and the defendant might be brought out, the witness Bridges testified, on cross-examination:

"Q. Did you see the defendant on Thanksgiving night? A. Yes, sir.

Q. Did you see him lying on the sidewalk? A. No, sir.

Q. What happened to him? A. I seen him looked like his face had been beaten by blows and was bloody.

Q. Did you see the blood puddle on the sidewalk? A. Yes, sir.

Q. Did you see the dogs lap it up? A. No, sir.

The Court: Don't go into that.

Mr. McDonald: I understand it happened.

The Court: Leave out all the things that happened that are not relevant. We are not trying the dogs."

It is argued that this testimony was relevant, showing the bad feeling between the defendant and the deceased, and that the remark of the court, "We are not trying the dogs," was prejudicial, as tending to belittle and ridicule the defendant and his plea of self-defense. This testimony with reference to the dogs was in no sense relevant, and did not bear remotely upon the issue being tried. Its introduction could only have tended to shock the sensibilities of the jury, and prejudice their minds. It constituted extraneous matter, which the defense had no right to inject into the case, and which the court properly ruled as irrelevant. Nor do we think that his incidental remark, "We are not trying the dogs," could be reasonably construed as belittling or ridiculing the defendant. There was no reference to the defendant or to his plea of self-defense in the judge's remark, nor could his language be taken as an opinion on the facts or the merits of the case. State v. Thrailkill, 71 S.C. 136, 50 S.E. 551.

It is next urged that the court erred in failing and refusing to require witnesses for the state to answer questions propounded, on cross-examination, in violation of the appellant's constitutional rights, article 1, § 18.

During the cross-examination of the witness McCain by appellant's counsel, he answered many questions, but a few elicited no reply from him. But this failure to answer not only did not interrupt his examination, but at no stage of it was the court requested to order the witness to answer. And the same thing is true with reference to the witness William Copeland. An examination of the testimony shows that the questions to which these witnesses made no answer had already been answered. The record does not show that counsel insisted upon an answer, and, as already stated, the court was at no time during the progress of the trial requested to order these witnesses to answer any questions. We see no merit in this exception.

By several exceptions, the appellant assigns error to the judge's charge to the jury. In the appellant's brief, these exceptions are restated, but are unsupported by argument or by citation of authority.

It is urged that the trial judge erred in his instructions to the jury on the law of self-defense. This portion of the charge is as follows: "Self defense is a plea that any person charged with murder may plead. It is a right that has come to us from time immemorial to defend yourself against serious bodily harm or death. A person who pleads self defense must show four things: That he was without fault in bringing on the difficulty. A man who is at fault in bringing on a difficulty has no right to plead self defense. No matter if after being at fault in bringing on the difficulty it is necessary for him to strike or shoot to save his life he cannot plead that-it is no excuse, because he was at fault in bringing on the difficulty and the law says he cannot avail himself of that defense. Second, at the time he struck the fatal blow or fired the fatal shot he must believe that he was in danger of receiving serious bodily harm or death at the hands of his assailant. Third, not only must he believe that, but the circumstances must be such that a man of ordinary judgment and prudence would think so. And the fourth is that there was no reasonable means of avoiding it. If a man may avoid taking the life of another, he must do it. If he can reasonably avoid it, he must do it. In fact the law requires him to retreat, if by retreating he could avoid taking human life. A person need not retreat if to do so would apparently increase his danger. Take all of the circumstances and if to undertake to retreat or to refrain from striking or shooting would apparently increase his danger, then he may stand his ground and strike in self defense."

The first specification of error is that the Court erred in charging the jury as follows: "Not only must he believe that but the circumstances must be such that a man of ordinary judgment and prudence would think so," the error being, failure to qualify the instruction by adding the words, "if situated under like circumstances." We think there was no misstatement of the law.

The jury were plainly told that the situation was to be judged at the time of the fatal shot by the standards of the belief of a man of ordinary judgment and prudence under the circumstances existing at that time.

It is next contended that the trial judge failed to charge that a defendant, in taking the life of another, has the right to rely on appearances in determining whether or not he is in immediate danger of bodily harm.

The charge itself is a complete answer to this criticism. After stating that the defendant must believe that he was in danger of receiving serious bodily harm or death, this statement of the law was given: "Not only must he believe that, but the circumstances must be such that a man of ordinary judgment and prudence would think so." And the charge concluded: "Take all of the circumstances, and if to undertake to retreat or to refrain from striking or shooting would apparently increase his danger, then he might stand his ground and strike in self defense." This instruction gave to the defendant the right to rely on appearances as to whether or not he was in immediate danger of bodily harm. Similar instructions were sustained in State v. Scruggs, 94 S.C. 304, 77 S.E. 944; State v. Boyd, 155 S.C. 432, 152 S.E. 677. Furthermore, this exception cannot be sustained, because no request was made that such instruction be given. We shall elaborate on this point later in this opinion.

The...