State v. Petit

• Decision Date: 06 April 1928
• Docket Number: (No. 12421.)
• Citation: 142 S.E. 725
• Parties: STATE. v. PETIT.
• Court: South Carolina Supreme Court

142 S.E. 725

STATE.

v.PETIT.

(No. 12421.)

Supreme Court of South Carolina.

April 6, 1928.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Competent; Relevant.]

[COPYRIGHT MATERIAL OMITTED.]

Carter, J., dissenting and Cothran, J., dissenting in part.

Appeal from General Sessions Circuit Court of Colleton County; H. F. Rice, Judge.

Harry Petit was convicted of manslaughter, and he appeals. Affirmed.

A portion of the charge of the presiding judge was as follows:

(6) "I further charge you that, if a third party attempts to quiet a disturbance, and is told that his services are not needed, and that there is no danger of any one sustaining bodily harm from the disturbance, then it is the duty of the third party to leave the premises and not attempt any violence. If the third party is told to leave by those occupying the premises, then it is his duty to leave, and, if he remains, he does so at his own peril."

The Court: Now, Mr. Foreman, in that case, I will do the best I can. If Padgett, the man who was killed, heard a disturbance across in this house, and he thought some one was going to be injured there, in other words going to be a breach of the peace, and he went there to quiet the disturbance, and to prevent the breach of the peace, or to prevent some one from doing harm to the other, then he was no intruder. If he got over there, and there was no necessity for him to interfere, and he knew it was not, and should have known from the situation he found there, and he was asked to leave the premises, to get out of the house, and the yard, then he should have gone, because after that he then would stand in the position of a trespasser; but, if he went over simply to protect some one, and if he thought some person in that house was about to receive some injury, then it was not only—had a right to go, but he should have gone; and then in that case he would not have been any trespasser. If there was no necessity for it, and, when he got over there, he found no necessity for it, and he was asked to leave the yard, and then he should have left. After that, when he found no necessity for him to remain, and if he found no necessity, no danger of any one being hurt, and then he should have left the yard, if he was requested to do so.

"I further charge you that before a third party can use any violence in quieting an attack by one person on another, the circumstances must be such that the third party will have reasonable cause to believe that a felony is about to be committed, and, if this reasonable cause does not exist, then the third party cannot intervene, and it is his duty to leave."

The Court: Now, I can't charge you exactly in those words, because it would not make any difference what some other person thought, and as common sense, and with his own eyes might have thought that there was danger of some one receiving serious bodily harm, and if so, then it was his duty to interfere to prevent some person—another person in that house from receiving serious harm.

"I further charge you that, if a third party enters the premises of a person on a peaceful mission, and is told to leave by the party occupying the premises, then it is his duty to leave, and the party occupying the premises has the right to eject him from his habitation, or its curtilage, and can use so much force as may be necessary to do so."

The Court: Now, the mere fact I could not charge that in toto as it stands there. The mere fact he might have remained for a short while, and he should be given, even where no person is in danger, no one was going to behurt, and if he got over there with the purpose of trying to protect some one from being hurt, and if he found no one was being hurt, and even if he was ordered out of the yard, then he did have a reasonable time in which to leave the premises, and would not justify any one, because he did not instantly leave, to cut him, or strike him, or kill him, or do any other harm, and he was entitled to a reasonable time in which to leave the premises, of course, he would not be justified in using any kind of violence, unless it was necessary to protect some one from being hurt.

The Court: You want me to charge further than that?

Mr. Jefferies: I think your last statement covers the balance of that last paragraph. That last statement "could not use any violence, unless it was necessary, " covers that last statement.

The Court: What about the seventh?

Mr. Jefferies: I think your honor has covered that.

The Court: Now the eighth?

Mr. Jefferies: I ask your honor to charge that.

The Court: I have not covered that entirely, and I will read it all if you desire for me to do so.

Mr. Jefferies: Yes, sir.

(8) "I charge you that the dwelling house of a man, where he lives, is his home, or castle, and he may repel force by force in the defense of his person, habitation or property, against one who manifestly intends and endeavors to do him bodily injury or to take his life; and in such case he is not bound to retreat, but may pursue his adversary until he has secured himself from all danger, and, if he kills his adversary, it is excusable homicide." State v. Brooks, 79 S. C. page 148, 60 S. E. 519, 17 L. R. A (N. S.) 483, 128 Am. St. Rep. 836, 15 Ann. Cas. 49.

The Court: That's correct law, Mr. Foreman and gentlemen. He may use whatever amount of force is necessary, or appears to him to be necessary, in order to protect himself.

Mr. Jefferies: No. 10, your honor, please. No. 9, I think your honor has covered it.

(10) "The jury is instructed that the fact that the defendant was only renting the premises on which the killing took place in no way affected his rights under the law. In other words, he had the right to act the same on the rented premises as he would have had, had the property been his own."

The Court: That's correct, the fact he might have been renting makes no difference as to the protection of his home. He was renting it, and he had the exact, the same rights to protect his home, while he was renting the place, and he was living there, and as if he owned it in fee simple.

The Court: Now the eleventh, I think I have convered that, and the twelfth I think I have covered that. If you want me to read them I will.

Mr. Jefferies: I would like for your honor to read No. 12.

(12) "I have referred in the charge above to habitation, or castle, and I charge you that any portion of a man's dwelling, including the steps leading into the dwelling, is a part of the castle, and that if a defendant takes the life of a trespasser in defense of himself, or property or home within the dwelling or on the steps, or any other portion of the habitation, the killing is justifiable, and the verdict in such a case should be not guilty." 30 C. J. 82.

The Court: You take that, Mr. Foreman and gentlemen, in connection with what I have already told you.

The Court: Now the thirteenth. Now I do not remember the testimony, whether it occurred in the garden, or in the chicken yard?

Mr. Moorer: Occurred in the chicken yard between the two houses.

The Court: You mean the actual injury?

Mr. Jefferies: Our position, it occurred in the actual dwelling, and standing in the door, inside of the house.

The Court: I will charge it.

(13) "I further charge you that where a house, premises, yard or anything within the curtilage of a dwelling are jointly occupied, used and possessed by two persons; each joint occupant being entitled to possession, need not retreat when attacked while inside yard, building and premises. If you find that the defendant had the right in this case to use the places where the homicide occurred, and if said right also belonged to the deceased, then I charge you that the defendant in this case would not have to retreat in order to make out a plea of self-defense, provided, however, the defendant otherwise complies with the rules of self-defense as I have given them to you." 30 C. J. 72; State v. Marlowe, 120 S. C. 205, 112 S. E. 921; State v. Bowers, 122 S. C. 275, 115 S. E. 303.

The defendant's ninth and tenth exceptions are as follows:

(9) In that his honor erred in modifying the defendant's sixth request for charge; the error being that a party gaining admission to the premises of another with the avowed purpose of quieting a difficulty is under the legal duty to leave the premises when he is told by those occupying same that his services are not needed and that no one is in danger.

(10) In that his honor erred in modifying defendant's request for charge, the request and the modification being as follows, to wit:

"I further charge you that, before a third party can use any violence in quieting an attack by one person on another, the circumstances must be such that the third party will have reasonable cause to believe that a felony is about to be committed, and, if this reasonable cause does not exist, then the third party cannot intervene, and it is his duty to leave.

"The Court: Now, I can't charge you exactly in those words, because it would not make any difference what some other person thought, and as common sense, and with his own eyes might have thought that there was danger of some one receiving serious bodily harm, and if so, then it was his duty to interfere to prevent some person—another person in that house from receiving serious harm."

The error being that his honor by the charge in effect told the jury that a person seeking to quiet a domestic difficulty could act as he saw fit, and that he would not be governed by the elementary rule that a party's acts under any emergency should measure up to what a reasonable person would have done under similar circumstances. This modification was highlyprejudicial to the defendant, In that there was testimony to the effect that the deceased had been drinking heavily, and for the trial judge to charge that under the influence of whisky he could decide himself whether it was necessary for him to intervene in a domestic difficulty would...