State v. Rochester

• Decision Date: 22 July 1905
• Citation: 51 S.E. 685,72 S.C. 194
• Parties: STATE v. ROCHESTER.
• Court: South Carolina Supreme Court

51 S.E. 685

72 S.C. 194

STATE v. ROCHESTER.

Supreme Court of South Carolina

July 22, 1905

Appeal from General Sessions Circuit Court of Oconee County; Joseph A. McCullough, Special Judge.

Indictment against Earle Rochester for murder of Walter Mills. From sentence, defendant appeals. Reversed.

The following are the exceptions:

"(1) Because the presiding judge erred in charging the jury as follows: 'A great deal has been said and written as explanatory of malice and to illustrate malice, and men may have different conceptions of what that legal term means. After all, what is malice? It is the intentional taking of human life.' It is respectfully submitted that the presiding judge erred in giving this definition of malice and that the same was calculated to mislead the jury because: (a) Proof of an actual intent to kill does not of itself show the existence of malice, for an intentional killing may be excusable, as where it is done in self-defense, or it may be only manslaughter, as where the killing is done in the heat of passion caused by sufficient provocation. (b) Intent to kill is only evidence of malice and the existence of the intent to kill is material as bearing on the degree of the crime. (c) A killing with malice is where the act is done without legal excuse, extenuation or justification; for, if there be any legal excuse extenuation, or justification, the act is not malicious, and the homicide is not murder, though it be done with a settled purpose to kill, but it will be, according to circumstances, either manslaughter or justifiable or excusable homicide. (d) Malice is the chief characteristic--the grand criterion--by which murder is to be distinguished from other species of homicide, and in no case does the intentional taking of human life constitute murder unless it is done with malice; that is, with a mind regardless of social duty and deliberately bent on mischief, with a wickedness of disposition, hardness of heart, cruelty, or recklessness of consequences.

(2) Because the presiding judge erred in charging the jury: 'Now, Mr. Foreman and gentlemen of the jury, if you believe beyond a reasonable doubt that the defendant intentionally killed Walter Mills, that the purpose which actuated the act--that the purpose which actuated the pulling of the trigger--was, "I mean to kill him because I want to kill him," if that be the purpose, and that be the motive, it makes no difference what may have been the surrounding circumstances, that is murder.' It is submitted that his honor erred in thus charging, and the same was calculated to mislead the jury, because: (a) Intent is thereby made identical with malice. (b) Malice is a deliberate and well-formed purpose to take life without justification or excuse. (c) Intent is not synonymous with malice, because if the intent be to kill in self-defense it is not unlawful. (d) Motive or purpose were made equivalent to malice, whereas motive and purpose are evidence from which malice may be inferred, and the absence of evidence suggesting a motive or purpose may be considered in favor of the accused. (e) The right to take life intentionally in self-defense, because the accused wants to protect himself, was ignored in the failure to state the important limitation or qualification to the effect that the intentional taking of life must be without justification or excuse. (f) It does make a difference as to what may be the surrounding circumstances of a killing, for, if it be inferred from the surrounding circumstances that the accused took the life of his adversary to save his own life, or to save himself from serious bodily harm, the killing is excusable.

(3) Because the charge of his honor upon defendant's ninth request to charge was erroneous and misleading to the jury. The request and charge are as follows: "'A person in the rightful possession of lands may lawfully approach any person wrongfully upon the same, and may order the person trespassing to quit the land, and, in the event of refusal so to do, may use such force as may be necessary to eject such trespasser; and if the person in possession is resisted by force in the attempt to eject such trespasser, he may legally defend himself and repel force by force, using such force as the fierceness of the attack may render necessary to defend himself. When a person is on his own premises he may stand his own ground. He is not obliged to retreat, but may stand his own ground and repel force by force, and not retreat, but may pursue his adversary until he find himself out of danger; and if, in the conflict between them, it becomes necessary to kill his adversary, such killing is excusable, and the defendant should be acquitted." Well, with reference to the ninth request, I can't tell you when, how, or under what circumstances one should retreat in order to avoid taking human life. Of course, a man on his own premises has a greater right there than anybody else; but there might be circumstances which would require him to avail himself of every reasonable way of escape to avoid taking human life on his own premises. It is a question for you to say, from all the circumstances in the case, whether or not the defendant acted as a man of ordinary firmness and reason would have acted.' Whereas, his honor should have charged the jury (a) that when a man is attacked on his own premises he may stand his ground, he is not obliged to retreat, but may stand his ground and repel force by force and not retreat, for the law recognizes this difference between being attacked on one's own premises and somewhere else, and the charge was erroneous in not recognizing this difference; (b) in charging that there might be circumstances which would require him to avail himself of every reasonable way of escape to avoid taking human life on his own premises, without laying down some rule or principle that would serve as a guide in determining what circumstances, if any, would require a man to retreat when attacked on his own premises; (c) leaving it for the jury to say what circumstances would require a man to retreat on his own premises, without giving the jury any rule or principle, thus limiting or qualifying the "law of the castle,' and thereby leaving the jury to determine both the law and the facts constituting such exception or limitation, if any there be.

(4) Because his honor erred in ruling that the witness John Hoops could not testify that on the Sunday afternoon preceding the Thursday on which the killing occurred that he (Hoops) warned defendant, Earle Rochester, not to go over there, meaning to Walter Mills' house; witness having told about the meeting on that Sunday afternoon between Mills and Rochester at the latter's residence, the way in which Mills approached and left the house, the manner of his leaving, and what was said, the seeing of Walter Mills and other men at his house and yard by Hoops and Rochester while in the latter's garden a few minutes after Mills had left Rochester, to all of which the witness had testified, for the reasons (a) that, the witness having testified as to part of conversation, it was competent and relevant for him to give the whole conversation; (b) it was competent and relevant as tending to show an apprehension of great danger on the part of the defendant, and therefore his good faith in acting as he did at the time of the fatal encounter, and to negative the idea of malice on the part of the defendant.

(5) Because his honor erred

in excluding the answer of Mrs. Annie R. Rochester to the question, 'When did you tell him to go up there?' meaning to the west end of his field, where defendant was at work, when she testified she saw Walter Mills come down the hill, cross the bridge, and come on through the bottom towards the end of the field where defendant was then working; Mills having thus returned in a short time after witness saw him leave Rochester in the bottom, and heard Mills say he would return in a short time and fix him (Rochester). It is respectfully submitted that, the witness having

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