State v. Petsch

• Decision Date: 18 February 1895
• Parties: STATE. v. PETSCH.
• Court: South Carolina Supreme Court

20 S.E. 993

43 S.C. 132

STATE.

v.PETSCH.

Supreme Court of South Carolina.

Feb. 18, 1895.

Homicide—Dying Declarations—Evidence—Instructions—Self-Defense.

1. A sworn dying declaration, after stating that deceased was shot by defendant, recited that "I will state the cause and occurrence of the shooting, " and then gave an account of the circumstances. Held, that it was not error, after striking out a statement of circumstances leading up to the difficulty, to refuse to strike out the clause, "I will state the cause and occurrence of the shooting, " as irrelevant.

2. Error in admitting evidence will not be reviewed, where no exception was taken thereto.

3. The state may ask a witness who has testified if she is the wife of defendant.

4. Where, in a prosecution for murder, defendant testified as to what occurred between himself and his wife when he left his house, immediately before the homicide, the state may question the wife in regard to what then occurred.

5. Defendant, on refusing to pay a bill which deceased had several times before sent to him, sent deceased a very insulting message, which was evidently the cause of the difficulty resulting in the homicide. Held, that it was proper to exclude evidence as to the reason why defendant refused to pay the bill.

6. It is not reversible error to refuse to permit a witness to testify as to a matter the substance of which he has already testified to.

7. It is not error to refuse to give an in-struction in the words of the request, providing the proposition of law is correctly given.

8. It is not error to refuse an instruction which has no bearing on the case,

9. It is not error to refuse an instruction which has already been substantially given.

10. It is not error to instruct the jury that in arriving at their verdict they are not to be influenced by any feeling of sentiment, but should apply the law as given by the court to the facts; that, if the court has erred, defendant can have the error corrected.

11. To entitle defendant to defend on the ground of self-defense, he must show that he was without fault in bringing about the difficulty, and that the circumstances led him honestly to believe that he was in imminent danger of losing his life or of sustaining great bodily injury.

Appeal from general sessions circuit court of Charleston county; I. D. Wltherspoon, Judge.

Henry W. C. Petsch, convicted of manslaughter, appeals. Affirmed.

The court charged as follows:

"The prisoner at the bar, Henry W. C. Petsch, is charged by the state with the crime of murder. The state charges that he, the prisoner, Petsch, fired a pistol shot, and wounded one John P. Rickles, Jr., in this city, on the night of the 9th of April of this year, and that at the time he fired that pistol he was instigated and prompted by malice, either express or implied. The first question of fact for you to pass upon, the first issue made by this indictment between the state and the citizen, and upon which the state must establish the fact beyond a reasonable doubt, is that John F. Rickles, Jr., came to his death from a wound of a pistol fired in the hands of the prisoner at the bar. If you are satisfied on that point, then the question arises, and you are to determine from the testimony you have heard on the stand, whether the prisoner at the bar be guilty of the crime of which he stands charged or not guilty. Now, if it appeared here in evidence that the deceased came to his death by reason of a pistol-shot wound inflicted by the prisoner, and nothing more appeared, then the law would presume malice from the killing and the use of the deadly weapon. This presumption rests upon the further presumption that every sane person intends the probable consequences of his act; but whereas, in this case, the facts and circumstances attending the killing have been developed upon a judicial inquiry, then I charge you that there is no presumption of guilt in law resting upon the prisoner. On the contrary, the law presumes that he is innocent, and that presumption rests with him until it is overcome by the testimony introduced by the state on the stand, and satisfies you as triers of the fact that he is guilty as charged, beyond a reasonable, substantial doubt arising from a consideration of the testimony. I have been requested to charge you as to this reasonable doubt. The defendant's counsel ask me to charge, and I so charge you, as it is laid down in the books as authority, 'that reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in such a condition that they are unable to say that they feel an abiding conviction, to a moral certainty, to the guilt of the accused.' Now, Mr. Foreman, the law says that this doubt, to which every prisoner is entitled when charged with a crime, must be a reasonable doubt. It must be a doubt arising from the consideration of the testimony for which the juror can conscientiously give himself a reason why he cannot sign the verdict of guilty. If, after a fair and impartial consideration of all the testimony in the case, you have such a doubt, then the state has failed to establish the guilt of the party, and your verdict should be not guilty. It must be a substantial doubt, arising from the consideration of the testimony, as distinguished from a speculative or imaginary doubt; and I can charge you safely that it must not be a doubt influenced by your sympathy for the accused, or by your prejudice against him; because the law contemplates that in the trial of this cause you, so far as you can, will divest yourselves of all feeling of human sympathy as certainly of all prejudice, and that you will be guided in reaching your verdict, whatever it may be, by your honest conviction, derived from a consideration of the testimony. Now, Mr. Foreman, killing is either unlawful, or it is justifiable, or it may be excusable. It is unnecessary for me to instruct you as to the circumstances under which the taking of human life would be justifiable. I will confine myself to instructing you as to what is unlawful killing and excusable killing. The unlawful taking of human life is either murder or manslaughter, and, Mr. Foreman, under an indictment charging a party with murder, if the evidence is sufficient to justify either of such verdicts, you can find a verdict of guilty either of murder or manslaughter. 'Murder' is the malicious taking of human life; it is nothing more or less than the evil, wicked intent to take human life. This evil, wicked intent to take human life, which is necessary to constitute the crime of murder, can be either expressed or implied. It may be expressed by the evil expression of the human lips, indicating this intent on the part of the human heart, or it may be implied where the killing takes place under such circumstances as indicate that it must have been prompted by a wicked, evil, depraved heart, devoid of social duty, and fatally bent on mischief. This evil intent must be a premeditated intent to take human life, but, whilst it is necessary for the state to show that the evil intent controlled the act of killing, it is not necessary for the state to show that that evil, malicious intent existed for any given time before the killing. But it must be there; it must prompt, actuate; it must spring from this wicked heart, and must prompt the act of killing, at the time of the killing. And.as malice is a question of intent, it is of the utmost importance that the jurors should calmly and dispassionately consider all the testimony bearing upon the fatal act, in order to discover and determine what motive prompted the act of killing at the time. Was the motive this evil intent to take human life? If so, and you are so satisfied; if you are satisfied that the deceased came to his death at the hands of the prisoner at the bar by shooting with a pistol, and that the prisoner at the bar was at the time of the shooting actuated and prompted by this evil, malicious intent to take human life, —he is in law guilty of murder, and your verdict should so find. But if you conclude that the state has failed to establish hie guilt of murder beyond a reasonable doubt, then you are to go a step further, and under this indictment you are to consider and determine whether or not the state has established his guilt of manslaughter beyond a reasonable doubt. Now, what is manslaughter? Manslaughter is where the act of killing is not prompted by this evil, wicked intent to take human life, as in the case of murder, but it Is distinguished from murder by the absence of malice. It is where the killing takes place under the impulse of sudden heat and passion, aroused by a lawful provocation, and under circumstances that the law will not excuse the act of killing. It is my duty to say to you, as a matter of law, and I could not say less consistent with my duty, that no words of provocation, however insulting, will justify in law the party to whom they are addressed or applied taking the law in his own hands, and committing an assault and battery; much less would it excuse the resort to a deadly weapon. I take it that it is unnecessary to say to an intelligent jury that we are not here in the administration of public justice to be actuated by feelings of sentiment. That may do very well outside of this courthouse. But we are here to see that the law which is laid down as a rule of conduct for all citizens is enforced. Whenever a party is charged with violation of law, it is my duty to give you the law. It is your duty to apply the facts to the law; and, if the state has established the guilt of the party accused beyond a reasonable doubt, you should find a verdict of guilty, and you cannot allow your judgments, according to your oaths, to be influenced by sentiment or anything of that kind.

"Mr. Foreman and gentlemen, you will regard the law as given you by the court. It is your duty to do so. If this court...