State v. Owens

• Decision Date: 17 February 1908
• Citation: 79 S.C. 125,60 S.E. 305
• Parties: STATE . v. OWENS.
• Court: South Carolina Supreme Court

60 S.E. 305
79 S.C. 125

STATE .
v.
OWENS.

Supreme Court of South Carolina.

Feb. 17, 1908.

1. Homicide—Self-Defense—Instructions.

The charge that the burden of proof was on defendant to establish his plea of self-defense, by the preponderance of the evidence, and that the question is whether such defense has been out, is not erroneous; it being also charged that it was incumbent on the state to prove every allegation of the indictment, beyond a reasonable doubt, and that defendant was entitled to the benefit of any reasonable doubt, on any material fact.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26. Homicide, §5 614-632; vol. 14, Criminal Law, §§ 1904-1922.]

2. Homicide—Appeal—Harmless Error—Instructions.

The statement in the charge in a homicide case that the Constitution guarantees to every citizen the protection of his life, and that defendant is charged with having violated that guaranty, if technically inaccurate, is harmless.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 715-720.]

8. Same.

The instruction in a homicide case in which there is evidence of murder and a conviction of manslaughter that, if self-defense is not made out, the jury will ask what offense has been made out "whether murder or manslaughter, " is not prejudicial in not stating that if such defense is not made out defendant is guilty of "some" crime.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2G, Homicide, §§ 614-632.]

4. Same.

Any error in an instruction as to presumption of malice is immaterial, the conviction having been of manslaughter.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 715-720; vol. 15, Criminal Law, §§ 3154-3169.]

5. Same.

One convicted of manslaughter may not complain that he should have been convicted of murder, or acquitted.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, § 722.]

6. Criminal Law — Instructions—Written Requests.

Circuit court rule 11, providing that requests to charge shall be submitted in writing, should be complied with, that a refusal thereof may be reviewed.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2007.]

7. Same—Charges to Grand Jury.

Defendant, convicted of manslaughter, may not complain of remarks in a charge made to the grand jury, before the impaneling of the petit jury, to the effect that it seemed from the history of trials in that county that killing was not a crime, and that the court should be allowed more latitude in charging petit juries.

Appeal from General Sessions Circuit Court of Dorchester County; Ernest Gary, Judge.

John T. Owens was convicted of manslaughter, and appeals. Affirmed.

R. W. Haynes and M. Rutledge Rivers, for appellant.

P. T. Hildebrand and E. J. Dennis, for the State.

GARY, A. J. The defendant was indicted for the murder of S. W. Thornley, and was convicted of manslaughter. Upon being sen fenced to 10 years at hard labor in the state penitentiary, he appealed to this court upon exceptions, which will be considered in their regular order.

First Exception. "Because his honor Judge Gary, the presiding judge, erred in his charge to the jury, the same, taken as a whole, being erroneous, although some of the propositions of which the said charge is composed may severally be conformable to recognized authority. Nevertheless the said charge, taken in its entire scope and bearing on the case, was likely to lead the jury to a misconception of the law as applicable to the case, in which it imposed upon the defendant the burden of the proof, throughout the case, shifting same from the state." Waiving the objection that the exception is too general, it cannot be sustained. His honor the presiding judge charged that the burden of proof was upon the defendant to establish his plea of self-defense, by the preponderance of the evidence, but likewise charged that it was incumbent on the state to prove every material allegation of the indictment, beyond a reasonable doubt. The recent case of State v. Way, 76 S. C. 94, 56 S. E. 653, shows that the charge was free from the error assigned in this exception.

Second Exception. "Because his honor the presiding judge erred in charging the jury as follows: 'The Constitution of this state guarantees to every citizen the protection of his life and liberty and the right to accumulate property. The grand jury of Berkeley county has charged the defendant here with having violated that guaranty, and he denies the charge. He was arraigned on the charge of murder, and he pleaded not guilty, and that has raised the issue that we are to try'— because It is respectfully submitted that the grand jury did not charge the defendant with having violated the announced guaranty of the Constitution." Even if it should be conceded that the charge was technically inaccurate, the appellant has failed to show that it was prejudicial.

Third Exception. "Because his honor the presiding judge erred in charging the jury as follows: 'Now what is the issue? What is the charge? What is your inquiry? The defendant pleads not guilty, and sets up the plea of self-defense, and by that plea admits that he killed the deceased, but assumes that burden of the proof to show that he did it under such circumstances that the law will excuse him will not hold him responsible'— for the reason that the defendant by pleading, did not assume the burden of the proof, but the burden of proof is on the state throughout the trial of the case." It is true the circuit judge charged that the burden of proof rested upon the defendant to make out his plea of self-defense, by the preponderance of the testimony, but he likewise...