State v. Ross

• Decision Date: 18 December 1906
• Parties: STATE v. ROSS.
• Court: South Carolina Supreme Court

55 S.E. 977

75 S.C. 533

STATE v. ROSS.

Supreme Court of South Carolina

December 18, 1906

Appeal from General Sessions Circuit Court of Greenville County Prince, Judge.

Thomas E. Ross was convicted of murder, and appeals. Affirmed.

So much of the charge as is pertinent to the questions raised here is as follows:

"Whether or not the defendant killed the deceased, as charged in this indictment, and whether or not he assaulted the deceased with a deadly weapon, are questions of fact for you. My charge is that, if the defendant intentionally assaulted the deceased with a deadly instrument, an instrument calculated to produce death, and what I mean intentionally assaulted the deceased with that, the law would imply malice, unless he has satisfied you from the greater weight of the testimony in this case that he was acting in self-defense. You will remember that I told you that every killing in malice, whether express or implied, is murder. Now, gentlemen, if, in your consideration of this case, you should entertain a reasonable doubt as to whether or not the defendant, in slaying the deceased, if he slew him, is guilty of murder, as I have defined it to you, then you will proceed in your consideration of the facts of the case with regard to the question as to whether or not he be guilty of manslaughter. Manslaughter, as I have told you, is the unlawful killing of another without malice. If you were in a crowded courtroom like this, and should carelessly handle a deadly weapon, such as a pistol or gun and carelessly snap it, without regard for what might be the consequences, and when the hammer falls upon the cap of a cartridge and the gun or pistol goes off and kills some one in the crowd, that would be manslaughter, if the jury should believe your conduct on that occasion was reckless and you were guilty of criminal negligence. That would, however, be involuntary manslaughter, because, in handling the pistol carelessly, you didn't intend to shoot anybody. If you would take the pistol and deliberately fire it into that crowd, with no intention of killing any particular man, but recklessly shot into that crowd and killed some one, that would be murder but manslaughter is either voluntary or involuntary. Voluntary manslaughter is the killing of a human being in sudden heat and passion upon a sufficient legal provocation. Now, that means sudden heat and passion. This sudden heat and passion aroused upon a sufficient legal provocation would reduce a killing, which would otherwise be murder, from murder to manslaughter. Now, in order to do this, the killing must have been the result of the sudden heat and passion, and that sudden heat and passion must have been aroused upon a sufficient legal provocation. It is not every killing in sudden heat and passion that would be manslaughter; unless it be aroused upon a sufficient legal provocation, it would be murder; the law would imply malice. For instance, I would curse you and apply to you or members of your family, reflecting upon either your or their character, epithets which would be calculated to arouse to frenzy the ordinary man, and that was all I did, use words and nothing else, and you slay me, even if you would slay me in anger, in sudden heat and passion, yet it would be murder, for words will not justify an assault, much less a killing. It must be upon a sufficient legal provocation, and the law does not recognize words as provocation; it takes something more--it takes aggression to your person or property, or to the person or property of one under your protection, such as a wife or child, or some other member of your family, your father or your mother. As counsel told you, if I were to meet you on the street and apply vile epithets to you, and at the same time tweak your nose or put my hands upon you in a rude manner, in such a way as to show my contempt for your manhood, and you strike me dead, the law would not excuse you, but the law would say that it was manslaughter, because you did it upon a legal provocation, yet you resorted to more force than was necessary, and you did so because of your passion and not for the purpose of protecting your person. You could not make self-defense out of that, because you had used upon me a deadly instrument, one calculated to inflict death, and you had used it in heat and not in malice, but the law says it is manslaughter, not self-defense. It says it would be unlawful for you to kill me in that way, but it would not be murder. The law, in its tender compassion for the frailty of human nature, reduces that killing from murder to manslaughter. Counsel told you that every case of intentional killing or the intentional use upon another of a deadly instrument does not necessarily mean murder. It will be a homicide; it may be an unlawful homicide, perhaps, or it may be manslaughter, or it may not even be that; it may be lawful; it may be used in self-defense. So, if you decide this is not a case of murder, or that the state has failed to satisfy you beyond a reasonable doubt that this is a case of murder, and that the defendant is the guilty party, then you would inquire whether or not it is a case of voluntary manslaughter or involuntary, and, if you should conclude that you are not satisfied beyond a reasonable doubt that the defendant is guilty of manslaughter, acquit him.

As I have told you, there are only two cases of unlawful killing, either murder or manslaughter, and every unlawful killing belongs to one or the other of these classes and it is unlawful unless it is either justifiable or excusable. You need not consider the case justifiable homicide here; there are no facts to which that law would be applicable here in this case. There are no facts to which you could apply the law of justifiable homicide. Then you will inquire if it is an excusable homicide, by way of self-defense. When one comes into court and pleads self-defense, that he slew the deceased in the defense of his person, the burden of proving, of establishing, that plea is upon him, but he is not required to prove that with the same degree of certainty the state is required to prove its case. The state is bound to prove its case beyond every reasonable doubt, but the law requires of the defendant to establish his special plea by merely the greater weight of the evidence, the preponderance of the evidence, just as you would decide in a civil case. Now, self-defense is a perfect defense, when it is worth anything at all. It is a God-given right, and it is a man-given right to use it. In order for a defendant to avail himself of that plea, he must satisfy the jury of four elements by entering that plea, and he must establish each of the elements by the greater weight of the evidence, and, if he fails to satisfy the jury by the greater weight of the evidence on any one of them, the plea as to self-defense fails. Now, you will naturally inquire, what are elements? In the first place, he must be without fault in bringing about the difficulty. The plea of self-defense is a plea of necessity. One kills in self-defense because it is necessary to kill. That does not mean absolutely necessary, but apparently necessary. He must

be without fault in bringing about that necessity to kill, in bringing about the difficulty. If he has satisfied you as to that element by the greater weight of the evidence in the case, all of the evidence in the case--that is, by the greater weight of the evidence in the whole case--if he has satisfied you as to that element as to his being without fault in bringing on the difficulty, then one element which would entitle him to the plea of self-defense would be made out. That would not make good the plea, unless he goes further, and establishes the other three elements; and the next is, he must have believed himself in immediate danger of receiving death or serious bodily harm at the hands of his antagonist, and that it was necessary for him to strike in order to save himself from this threatened danger. He must satisfy you by the preponderance of the proof in this case that he did so believe, and, if he fails to do that, his plea would fail. You must be satisfied from the greater weight of the evidence that the defendant in this case, that the defendant did honestly believe himself in danger of receiving serious bodily harm or death at the hands of his antagonist, and that he believed it was necessary for him to strike in order to save himself from the threatened danger--that he did honestly believe that. If he has satisfied you on that, that goes to that extent in making out his plea; but that is not enough, because a coward may think it is necessary to strike when there is no danger, and a man of ordinary prudence and reason would not think it necessary to strike and would not have believed himself in danger. The law does not allow a man to come and simply believe himself in danger and take the life of another, but he must not only satisfy you by the preponderance of the evidence that he believed himself in danger, but he must satisfy you by the

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