State v. Peak

• Decision Date: 05 May 1926
• Docket Number: 11972.
• Citation: 133 S.E. 31,134 S.C. 329
• Parties: STATE v. PEAK.
• Court: South Carolina Supreme Court

133 S.E. 31

134 S.C. 329

STATE v. PEAK.

No. 11972.

Supreme Court of South Carolina

May 5, 1926

Appeal from General Sessions Circuit Court of Richland County; C. C Featherstone, Judge.

Lee Peak was convicted of manslaughter, and he appeals. Affirmed.

The trial court's charge, directed to be reported, is as follows:

The Court: Mr. Foreman and Gentlemen of the Jury: You are the sole judges of the facts in this case, and, when I say judges, I use that word advisedly, for you are the judges. Every man on that panel for the purpose of trying this case and finding what the facts of this case are is a judge, and his responsibility as a judge of the facts is just as high and just as great as that of the presiding judge.

The sole object of your inquiry in this case, as in every case is to find the truth, and, when you find that truth, put that in the form of a verdict, regardless of who it may help or who it may hurt. The theory of the law is that you have got twelve honest minds on that jury, each of whom is going out in search of the truth. Truth is the point towards which you are steering all the way through, and your chart and compass in endeavoring to reach truth is the law and the evidence.

Mr Foreman and gentlemen, this indictment charges murder, and it will be competent under this indictment to find one of four verdicts. If you write the word "guilty" on the back of this indictment, that will mean guilty of murder, and death by electrocution will follow.

If you write the word "guilty," and add to that the words "recommended to the mercy of the court," that will mean guilty of murder, but the punishment will be reduced from death by electrocution to lifetime imprisonment.

If you write the words "guilty of manslaughter," that will mean that the punishment will be not more than 30 years in prison, or not less than 2 years, in the discretion of the court. If you write the words "not guilty," that means the defendant goes free.

It is necessary, therefore, at the outset, that I define to you what murder is. Murder is the unlawful killing of a human being with malice aforethought, either express or implied. There must be malice at the time that the fatal injury is inflicted, before it can be murder. Murder is a deliberate killing, one which is done with a sedate mind and a formed design. Without malice existing at the time of the fatal injury, there can be no murder-no malice, no murder.

Now, I am not going to undertake to give you any other definition of murder, because my impression is that in charging long definitions, instead of clarifying the jury, it frequently confuses them. A killing in malice is murder. That is the highest grade of homicide.

Now there is another grade of homicide, a lower grade, and that is manslaughter. And what is manslaughter? Manslaughter is an unlawful killing of a human being in sudden heat and passion, upon a sufficient legal provocation. The law does not excuse a killing, because it is done in sudden heat and passion, but out of due regard it has for the frailties and weakness in human nature, it says where there is a killing in sudden heat and passion, upon sufficient legal provocation, it is a lower grade of homicide than murder, and therefore makes the punishment less. That is manslaughter.

Now, then, I come to the plea of self-defense. The defendant pleads self-defense, and, therefore, under the law, he who pleads self- defense admits the killing, and takes the burden upon himself to satisfy a jury, not beyond a reasonable doubt, but by the greater weight or preponderance of the evidence, that it was necessary, or apparently necessary for him to do the killing, in order to save himself from serious bodily harm or from death. The burden is upon the defendant to make out his case of self-defense by the greater weight or preponderance of the evidence.

Now, you don't determine, Mr. Foreman, preponderance of the evidence necessarily by the greater number of witnesses, but preponderance of the testimony is determined by the weight which you give to the testimony of the witnesses.

Now, then, there are four things-four requisites to sustain a plea of self-defense. What are they? And the defendant must make out all four of them by the greater weight or preponderance of the evidence.

First, the defendant must have been without fault in bringing about the difficulty-I mean the immediate difficulty; that which results in death. The law does not allow a man to be at fault in bringing about a difficulty and bringing the necessity to kill on himself, and then take advantage of the plea of self-defense. He must have been without fault in bringing about the difficulty. That's No. 1.

What is No. 2? He must have believed at the time that he fired the fatal shot that he was in danger-in imminent danger of losing his life or of receiving serious bodily harm. Not only must he have believed so, but we take then No. 3. A man of ordinary prudence, firmness, and courage, situated as he, must, in the judgment of the jury, have been justified in so believing-in so believing.

And No. 4 is: He must have avoided the difficulty if he could do so with reasonable safety to himself. The law does not require a man to retreat or avoid the difficulty, where by so doing he has increased his danger. There must be a reasonably safe, or apparently reasonable safe, means of escape before the law requires him to avoid the difficulty.

Now, Mr. Foreman and gentlemen of the jury, if he has made out all four of those requisites by the greater weight or preponderance of the evidence, then that constitutes a complete and perfect defense, and you have nothing to do except to write a verdict of not guilty. It is a question for you to say under all the evidence, as applied to the law which I have given you, whether or not he has so made out his case of self-defense.

Now, then, I charge you as to the law of appearances. A man has a right to act on appearance. The necessity may be either real, or it may be apparent. For illustration, if I draw a double barrel shotgun on you. It may be empty, but you don't know it. You have the right to act on appearances. And, if the jury believe that the circumstances and situation was such as to make the defendant believe that there was the necessity there, that his life was in danger, or he was in danger of receiving serious bodily harm, if that necessity was there, according to his view, whether it was real or apparent, and if the jury believe further that a man of ordinary prudence, firmness, and courage, situated as he was, would have so believed, then that is all that is necessary.

Now, then, counsel has indicated that he wants me to charge you with reference to a case where there is bad blood between the parties, or where one is known to be a dangerous or violent man.

Now, I charge you, Mr. Foreman and gentlemen of the jury, a man hasn't got a right to shoot another simply because he has a bad reputation for violence. Neither does he have a right to shoot him down for the reason that the man doesn't like him, or there is bad blood between the parties, but the law takes a reasonable view of the matter, and it says, Mr. Foreman, if a man has a bad reputation for violence, and you know it, then you have a right to construe his actions more harshly, and sometimes to act more hastily (strike out sometimes)-for a man to act more hastily. And so, if there is bad blood between them, you have a right to act more harshly and more hastily than otherwise.

Now, there is another matter that I want to charge you about. Mr. Foreman, if you and I have a difficulty and fight, and that fight is over and we separate, and after we separate I have time to cool-I have time to cool, and after I have had time to cool-I go back and renew that difficulty and kill you, simply for the purpose of avenging any injury which you have inflicted on me, that is murder. It is a question for the jury to say whether or not sufficient cooling time has elapsed. But, Mr. Foreman and gentlemen, if I have not had sufficient time to cool, if the injury which you inflicted on me still makes me smart, and makes the blood run hot through my veins, and I go back and renew the difficulty, and kill you, without having sufficient cooling time, then the law says that is not murder, but manslaughter.

Now, it is a question of fact for you to say whether or not there was any previous difficulty, and whether or not sufficient cooling time had elapsed. All of those are questions of fact for you to determine under the evidence. Now, then, Mr. Foreman and gentlemen, I told you where the burden is with reference to plea of self-defense.

Now, the burden all the way through the case is on the state to satisfy you of the guilt of the accused beyond a reasonable doubt. Mark you, I didn't say doubt. I said reasonable doubt, and a reasonable doubt in law is a strong substantial doubt arising from the evidence. If you have that kind of doubt, you are bound to give it to the defendant at every stage and on every phase of the case. If you have a reasonable doubt as to whether or not he has made good his plea of self-defense, then you have a reasonable doubt on the whole case, and you must give him the benefit of it. If you have a reasonable doubt as to whether or not he is guilty of murder or manslaughter, give him the benefit of it, and convict him of the lower offense. If you have a reasonable doubt as to whether or not he is guilty, or not guilty, give him the benefit of that doubt and acquit him.

Is there anything else, Mr. Graydon?

Mr. Graydon: No, sir.

The Court: Now, let's see if you are perfectly straight on the forms of your verdict. Mr. Solicitor, I see a memorandum there in pencil under the word "verdict"-probably...