State v. Portee

• Decision Date: 29 December 1922
• Docket Number: 11079.
• Citation: 115 S.E. 238,122 S.C. 298
• Parties: STATE v. PORTEE.
• Court: South Carolina Supreme Court

115 S.E. 238

122 S.C. 298

STATE v. PORTEE.

No. 11079.

Supreme Court of South Carolina

December 29, 1922

Appeal from General Sessions Circuit Court of Lexington County Frank B. Gary, Judge.

Russell Portee, Jr., was convicted of manslaughter, and appeals. Appeal dismissed.

The indictment and charge referred to in the opinion were as follows:

Indictment.

"* * * The jurors of and for the county aforesaid, in the state aforesaid, upon their oath present:

That Russell Portee, late of the county and state aforesaid in the year of our Lord one thousand nine hundred and twenty with force and arms, at Lexington, in the county and state aforesaid, in and upon one John C. Turner, feloniously willfully and of his malice aforethought, did make an assault, and that the said Russell Portee, him, the said John C. Turner, then and there feloniously, willfully and of his malice aforethought, with a certain heavy and powerful automobile, which he, the said Russell Portee, was operating and driving at a high, careless, reckless, willful, wanton and unlawful rate of speed, and in a highly careless and reckless manner in, on, along and over a public highway, the same being one of the leading and principal highways or thoroughfares leading from the town of New Brookland in a westerly direction to the town of Lexington, in said county and state, and while the said Russell Portee was so driving said automobile, in a careless, reckless, dangerous and unlawful rate of speed and in a grossly reckless and careless manner, in a westerly direction, in a densely populated community just without and near the town of New Brookland, and at or near the intersection of two public highways or streets, where many people were known to travel and people were liable to be traveling and moving at any and all times and hours of the day, did, feloniously, willfully and of his malice aforethought, with said automobile, while driving at the rate and in the manner aforesaid, him, the said John C. Turner, run against, strike, throw to the ground, run over, crush, bruise and wound, or caused the said automobile to run against, strike, knock down, crush, bruise, and wound, giving to the said John C. Turner thereby in and upon the body of him, the said John C. Turner, mortal wounds, of which said mortal wounds the said John C. Turner then and there died.

And so the jurors aforesaid, upon their oath aforesaid, do say that the said Russell Portee, him, the said John C. Turner, then and there, in the manner and by the means aforesaid, feloniously, willfully and of his malice aforethought, did kill and murder against the form of the statute in such case made and provided, and against the peace and dignity of the state."

Judge's Charge.

"* * * A felonious killing is either murder or manslaughter. He is charged with a felonious killing; he is charged with manslaughter just as much as he is charged with murder; and I will explain to you the difference, and I hope you will see the distinction when I explain it to you. 'Murder' is the killing of a human being with malice. That malice may be either expressed or implied. 'Express malice' is such as is manifested by some outward demonstration, such as lying in wait for one's victim, or making threats to take his life. That is express malice. 'Implied malice' is such as you have a right to infer from the use of a deadly weapon, or, as in this case, you have a right to infer malice from the reckless handling of a dangerous instrumentality until the circumstances show that it was not of that character.

Now, I repeat: 'Murder' is the felonious killing of a human being with malice. There is also a lower grade of felonious killing called 'manslaughter.' The law recognizes that there are times in a man's life when he is placed in such a situation that he does not act from design, but where he acts from impulse. In a proper case of that sort, it will mitigate his offense, although it does not excuse it.

Just to give you an illustration on that, I will indicate what I am talking about, and what I want to do is to make myself plain to you. Suppose I were to approach you and spit in your face; the law looks upon that as such an indignity as is calculated to make you lose control of yourself, and if, smarting under that insult, you should kill me, the law would not say it is murder; the law would say you ought not to have killed him, but the law does not call it murder, but will call it manslaughter; you acted from impulse and not from premeditation. There is an absence of malice, and that is the distinguishing difference between murder and manslaughter. In murder, there is the presence of malice, which is either expressed or implied from the reckless use of a dangerous instrumentality, or, rather, it is a homicide from the use of any other deadly weapon, and, as I say, you have a right to infer malice from those things; but if the testimony and the surrounding circumstances negative that idea, then there is no room for the presumption or inference.

I have told you what murder is, and what manslaughter is. Now, the defendant says that, although he ran the automobile over him, the killing was through misadventure, through accident. I should have told you in the beginning that a homicide may be either excusable, or it may be felonious. If it is a felonious killing, it is either murder or manslaughter. It is excusable if it is a killing that is done under circumstances which the law will excuse. That is the difference between the two kinds of killings--excusable killing or a felonious killing.

A killing that is done through accident presupposes that the accident was brought about through no fault on the part of the man who did the killing. That is one of the ingredients of a killing by misadventure, that it is a killing by accident through no fault of the party who does the killing.

You can very well understand how a man may sometimes take the life of a human being under circumstances where he cannot prevent it. Just to give you an illustration: Suppose you are driving your horse and buggy up the street at a proper rate and in a proper way, and a child suddenly jumps in front of your horse and is trampled to death; that would be a homicide through misadventure, through no fault of the party who brings about the killing; but in order to constitute a homicide through misadventure, there must be an accident, through no fault of the party who brings it about. If a party is acting with a dangerous instrument or instrumentality in a reckless way, in such a reckless way as to show utter disregard for human life, and death results from that, it is murder; that is what the law calls murder. Now, a familiar example given in the books is, where a man rides a horse at full speed upon a crowded thoroughfare and runs over some man and kills him, the law says he is supposed to intend the natural consequences of his wanton conduct, and although he may not know the man whom he kills, may not have any feelings towards him at all, his reckless, high-handed conduct has supplied it, or you would infer it from his reckless, high-handed conduct that it was done maliciously, and the law characterizes it as murder.

There is another phase that I want to call specifically to your attention. I have explained the difference between murder and manslaughter, and here is the distinction the law draws, as I understand it: If you are negligent in the handling of a dangerous instrumentality--now, mark you, I said negligent--not handling it in a reckless disregard of human life, in a high-handed way and in showing a mind that is fatally bent on mischief, but if you are using a dangerous instrumentality negligently, and death results to some one, that would be a foundation for manslaughter. That is the difference, and I want you to mark the difference between the handling of a dangerous instrumentality in such a reckless way as to show an utter disregard for human life, which would be a foundation for murder, and the handling of a dangerous instrumentality in a negligent way. If one is killed under those circumstances, not because he is handling it in a high-handed way showing that he is utterly disregardful of human life, but if he is using it in a negligent way, the law says that would be manslaughter.

Now, what is negligence. 'Negligence' is the failure to observe due care, or is the doing of what an ordinarily prudent person would not do under the particular circumstances, or the failing to do that which an ordinarily prudent person would do under the circumstances. If this defendant was guilty of conduct of that kind, with a dangerous instrumentality, and death resulted as a consequence of that, then that would be a foundation for manslaughter, which is very different thing from murder.

Now, gentlemen, there is another phase

of the law. If I give you law that is not sound, there is a tribunal that will correct me. I will be appealed from to the Supreme Court, and any mistakes that I make will be promptly corrected.

When any one violates the statute law of the state, when one is violating the law as laid down by our Legislature, that is negligence in itself--now, mark that. Now, in order to prevent injuries upon the public highways, our Legislature has gone as far as it could to enact laws, and calls upon its citizens to obey those laws. When a citizen does not obey those laws, he is acting negligently. That is negligence per se, negligence in itself--the failure to obey the law of the state. Now, what does the law require of one who drives an automobile along the public highways? It requires one not to exceed a speed of 25 miles an hour under any circumstances; under no circumstances shall he exceed a speed of 25 miles an hour.

When one approaches where a thoroughfare crosses

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