State v. Rivers

• Decision Date: 21 March 1938
• Docket Number: 14645.
• Parties: STATE v. RIVERS.
• Court: South Carolina Supreme Court

196 S.E. 6

186 S.C. 221

STATE v. RIVERS.

No. 14645.

Supreme Court of South Carolina

March 21, 1938

Appeal from General Sessions Circuit Court of Charleston County; M M. Mann, Judge.

Benjamin Rivers was convicted of murder, and he appeals.

Affirmed.

B Allston Moore and Frank H. Bailey, both of Charleston, for appellant.

Robert McC. Figg, Jr., Sol., of Charleston, for the State.

PER CURIAM.

Appellant was put upon trial in the court of general sessions for Charleston county on an indictment charging him with the murder of one Purse A. Wansley, a police officer of the city of Charleston, was by a jury found guilty without recommendation to mercy, and the sentence by the court to death by electrocution automatically followed.

There are ten exceptions to the judgment of the circuit court, and they will be considered separately, except when it is convenient to group them.

Exception 1 alleges error for that the trial judge, in charging the jury with respect to the right of a police or peace officer to make an arrest without a warrant, read to the jury the following section (907) from the Code: "Upon view of a felony committed, or upon certain information that a felony has been committed, or upon view of a larceny committed, any person may arrest the felon or thief, and take him to a judge or magistrate, to be dealt with according to law"; the error being that the appellant had committed neither a felony nor a larceny, and that such charge tended to confuse the issues before the jury, had no place in the trial or charge and was manifestly prejudicial to the appellant.

Immediately following the reading of the above section of the Code to the jury, the trial judge made this statement: " That section is not applicable to this case, because no felony had been committed, and no larceny was involved."

In charging a jury, the circuit judge should be cautious to charge only the law which is applicable to the case as made by the facts, for under some circumstances a mass of inapplicable law burdened upon the juror's mind may lead to great confusion. It is the constitutional duty of the circuit judge to declare the law, but this duty as heretofore stated only requires a statement of the law which is required by the facts adduced by the testimony. However, even though there was no testimony concerning the commission of a felony we do not feel that this utterance on the part of the circuit judge in his charge constitutes reversible error. The jury could not have been misled by the reading of the above section of the Code when they were clearly and unequivocally instructed that the section read to them was not applicable to the facts of the case presented for their determination and conclusion, inasmuch as no felony or larceny had been disclosed by the testimony. This exception is overruled.

The issues raised by the second and third exceptions are so closely related that they may be discussed together. They raise the question whether or not the circuit judge erred in failing to charge the jury that the attempted arrest of appellant by the deceased was illegal and in submitting the issue of the legality of the attempted arrest to the jury.

In order to dispose of these issues, a brief statement of the facts is necessary:

On the evening of July 13, 1936, appellant and his friend, Isiah Brown, went to the room of appellant's cousin at Logan and Magazine streets. Among others who were gathered there the same evening were Limus Simmons and Francis Middleton. There was some card playing and whisky drinking engaged in by some of the negroes present, and all parties above mentioned had had at least one drink. During the evening an argument developed between, first, the appellant and one Henry Middleton, but the record does not disclose any connection between Henry Middleton and the others, and Henry appears to have passed out of the picture almost as soon as entering thereupon; but immediately thereafter, in some way, Limus Simmons and appellant became involved in a dispute and retired from the room to Magazine street, accompanied by Brown and Francis Middleton. There is testimony that appellant reluctantly went out on the street, but in going asked Brown for a knife with which to cut Simmons. Whereupon Middleton procured from some source either a toy shotgun or pipe and struck appellant on the back of the head with such weapon. During the mêlée Simmons got away and went to his home at 10 1/2 Pitt street, and appellant and Brown chased Middleton, but he escaped. At the suggestion of Brown, he and appellant went to the room of Brown, which it appears is in the immediate locality, if not in the same house, in which appellant lived, and got Brown's pistol for the purpose of hunting Middleton and Simmons, with the avowed intent of putting Middleton, at least, "on the peg," which expression translated means, shooting him in the leg. While appellant and Brown were procuring this pistol, appellant changed his shirt, the one which he had on being bloody from the lick which he had received when Middleton hit him, and the woman with whom he lived undertook to dissuade him from his avowed purpose, but was unsuccessful. Appellant and Brown then returned to the scene of the previous trouble on Magazine street, and when opposite a vacant lot appellant testified that Brown fired the gun twice, but not at any one. Middleton claimed that he was in this vacant lot at the time of the shooting and that the gun was fired at him, as a result of which he ran and went to his home at 10 1/2 Pitt street, where he found Simmons, who had previously gone there. Within a short time thereafter appellant and Brown came to the door of 10 1/2 Pitt street and asked for Simmons and Middleton, whereupon Simmons and Middleton went over the back fence and proceeded to the police station, where they made a report of the affair. They were referred to Detective Wansley (the deceased), and, when he was informed that two boys had shot at Middleton on the corner of Magazine and Logan streets, he first tried to contact another officer to go with him, but, failing to do so, proceeded in an ordinary Chevrolet automobile with no insignia thereon and he himself being dressed in civilian clothes, to the section where the reported disturbance had occurred. Middleton and Simmons accompanied Officer Wansley. As they were crossing Montagu street, appellant and Brown were seen on said Montagu street walking toward Pitt street. Upon sighting appellant and Brown, Detective Wansley drove his car to the curb, hurriedly alighted therefrom, seized appellant and Brown and ordered them to consider themselves under arrest. Appellant stated that it was a dark night and he could not discern whether Detective Wansley was a white man or a negro, but there was testimony tending to show that the lights of the automobile were shining directly upon the deceased officer. A scuffle ensued between the three men and five shots were fired, two in quick succession, and after a short interval three rapid shots were fired. Officer Wansley was killed and his body bore evidence of three pistol wounds. The gun of the deceased officer was found on the pavement near his body with two fired cartridges in its chamber. Appellant's gun was never found, but he admits that he fired his gun without any appreciable interval between the shots, but only after the deceased had fired at him twice, one of which shots wounded appellant.

Now, the question is, Was the arrest under the facts of this case unlawful as a matter of law or was its legality a question for the jury?

In the case of State v. Sims, 16 S.C. 486, Mr. Chief Justice Simpson, writing the opinion of the court, said: "Is it legal for peace officers to arrest for offenses less than felony, without warrant and when there is no disturbance in view? As a general rule it is not, but we find the following in East P. C. 306: 'Lord Hale and some later authorities have holden that such arrests may be made upon the charge of another, though the affray be over, for the purpose of bringing the party before a justice to find sureties, or for appearance. But where time and circumstances will admit of it, the better way is to apply for a warrant. It seems clear, however, that if one menaces another to kill him, upon complaint thereof to a constable forthwith, he may, in order to avoid present danger, arrest the party to detain him till he can conveniently bring him to a justice of the peace. 2 Hale P. C. 88. But this power is grounded on the duty of the officer to prevent a probable felony, and must be governed by the same rules which apply to that case; though Dalton extends it even to the prevention of a battery. Dalt., Ch. CXVI., § 3.' In 1 Russ. Cr. & M., Ch. X., § 2, p. 771, it is stated 'that in all cases of misdemeanor a peace officer may apprehend the party while committing the offense, and it should seem upon fresh and immediate pursuit in some instances.' See, also, Rosc. Cr. Ev. 256.

It seems in this case that Thomas had raised a row in Griffin's store, and had...