State v. McGhee

• Decision Date: 14 October 1926
• Docket Number: 12082.
• Citation: State v. McGhee, 137 S.C. 256, 135 S.E. 59 (S.C. 1926)
• Parties: STATE v. McGHEE et al.
• Court: South Carolina Supreme Court

135 S.E. 59

137 S.C. 256

STATE v. McGHEE et al.

No. 12082.

Supreme Court of South Carolina

October 14, 1926

Appeal from General Sessions Circuit Court of Kershaw County; J. K Henry, Judge.

Charlie McGhee and another were convicted for setting fire to an unoccupied dwelling house belonging to defendant Charlie McGhee, and they appeal. Reversed and remanded for a new trial.

The opinion of Mr. Justice Cothran in State v. Des Champs omitting the first paragraph, is as follows:

"I think that there is a very great difference between what are denominated the 'affirmative defenses' of insanity and alibi. Unquestionably, as the law presumes the sanity of a defendant who is shown by the evidence and admitted by him to have committed a crime, the burden is cast upon him to prove by the preponderance of the evidence the special plea of insanity, which he is required to interpose upon his arraignment subject to the companion rule that if upon the whole case the jury should entertain a reasonable doubt of his legal guilt, they must acquit. But it seems to me that the so-called 'affirmative defense' of alibi is not affirmative defense at all. It is simply evidence adduced by the defendant to sustain his plea of not guilty that he did not commit the crime for the reason that he was not at the scene of the crime at the time of the occurrence. The burden was upon the state to prove beyond a reasonable doubt that the defendant was present at the scene of the crime and actually committed it. If the defendant offers evidence which generates a reasonable doubt in the minds of the jury that he was at the scene of the crime when it was committed, which of course would result from evenly balanced evidence upon this point, he should be acquitted.

"In 16 C.J. 533, it is said: 'Nor is the burden resting on the state shifted by insisting erroneously that the accused is interposing the defense of alibi, and although defendant, where the case is otherwise made out against him is bound to offer some evidence in support of his alibi, the state in all cases where his presence at the time and place of the crime is necessary to render him responsible must prove that he was there, as a part of the case; and if from all the evidence there exists a reasonable doubt of his presence, he should be acquitted.'

"In State v. Grice, 106 S.C. 279, 91 S.E. 383, the court said: 'The alibi was merely a means of disproving the charge'-not an affirmative defense, but a negation of the state's case.

"In State v. McDaniel, 68 S.C. 304, 47 S.E. 384, 102 Am St. Rep. 661, it was held error to charge that the defense of accidental killing had to be established by the preponderance of the evidence. I cannot see that the defense that the defendant was elsewhere when the crime was committed is any more an affirmative defense than that the admitted killing was accidental. I really think that it was less so.

"I think that there is a very great doubt as to the contention of the state that the presiding judge in his general charge was sufficiently explicit as to the duty of the state in establishing the guilt of the defendant beyond a reasonable doubt, as applied to the 'affirmative defense' of alibi. He did not specifically apply that principle when he went to charge upon alibi, and the jury may well have considered that he did not mean for it to apply in such a case. His charge conveyed the idea that, regardless of the rule he had correctly stated, when the defendant set up an affirmative defense and failed to establish it by

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