State v. O'Shields

• Decision Date: 19 December 1931
• Docket Number: 13310.
• Citation: 161 S.E. 692,163 S.C. 408
• Parties: STATE v. O'SHIELDS.
• Court: South Carolina Supreme Court

161 S.E. 692

163 S.C. 408

STATE v. O'SHIELDS.

No. 13310.

Supreme Court of South Carolina

December 19, 1931

Appeal from General Sessions Circuit Court of Aiken County; T. S Sease, Judge.

Ernest Malt O'Shields was convicted of manslaughter, and he appeals.

Affirmed.

Hendersons & Salley, of Aiken, for appellant.

B. D Carter, Sol., of Bamberg, and Gunter & Wilder and John E Stansfield, all of Aiken, for the State.

STABLER J.

On August 14, 1930, Ernest Hillman, a young man about nineteen years of age, was stabbed and cut with a knife, from the effects of which he died a few days afterwards. The cutting took place at or near the home of the deceased at Bath, in Aiken county. The appellant, Ernest Malt O'Shields, and his son, Richard O'Shields, a boy about eighteen years old, were charged with the homicide and were tried at the October, 1930, term of court of general sessions for Aiken county, the Honorable T. S. Sease presiding. The indictment contained two counts. By the first, both defendants were charged, as principals, with the murder of Hillman; by the second, Richard O'Shields was charged with the murder, and Malt O'Shields with being an accessory before the fact. The jury found them both guilty of manslaughter on the first count. Counsel for Malt O'Shields then moved the court, on behalf of that defendant, "to direct a verdict of not guilty as to him, or to grant him a new trial." The court overruled the motion and sentenced each of the defendants to imprisonment for a period of six years. Ernest Malt O'Shields alone appeals, and, by several exceptions, assigns error to the trial judge in charging the jury; in reading to them from Ruling Case Law-- as a part of his charge--as to who are principals and what is meant by being present, aiding and abetting; and refusing to grant appellant's motion for a directed verdict or for a new trial made after the verdict of manslaughter was rendered." These we shall now consider in order.

The trial court instructed the jury as follows:

"Now, there can be no accessory before the fact to the crime of manslaughter, but a person may be guilty of accessory before the fact in a felony such as murder, or grand larceny. As I conceive it, manslaughter is not considered a felony in this State. (Italics added.)

The appellant complains of the italicized portion of this charge as being error, for the reason that "under the law of this State manslaughter is a felony and such a charge was harmful and prejudicial to the defendant, because the jury would be more inclined to convict one of a crime of lesser degree than a felony and one that carries with it less odium, than they would when the crime is a felony or of a more serious nature."

It is to be noted that, a moment before he made the charge objected to, the trial judge told the jury that a person could be found guilty as an accessory before the fact "in a felony such as murder, or grand larceny," but not to the crime of manslaughter; and it may be that he based his conception that manslaughter is not considered a felony in this state on that fact. That, however, is not the true reason for the rule that one cannot be convicted of being an accessory before the fact to manslaughter. The real reason lies in the nature of the crime. Manslaughter can be committed only where there is no premeditation; it follows, therefore, that a person cannot be convicted as an accessory before the fact for procuring another to commit such crime, regardless of its classification.

Blackstone says that the term "felony" is thought to be derived from the word ""fee," signifying the fief, feud, or beneficiary estate, and "lon," which signifies price or value, as being a crime punishable by the loss of the fee which the feudal tenant held of his lord. 4 Blackstone Commentaries, page 95.

In 8 R. C. L. 55, the writer, in speaking of felony and misdemeanor, says: "Felony, as a term, is incapable of any satisfactory definition, and is descriptive of no offense. At common law felonies were crimes which, like treason, worked a forfeiture of the offender's lands or goods. If this test were applied, there would be no felonies at the present time, for forfeitures no longer follow conviction."

In State v. Murphy, 17 R.I. 698, 24 A. 473, 474, 16 L. R. A. 550, the court, in commenting upon the common-law definition of felony, had this to say:

"Of course, it is to be borne in mind that this definition of felony is mainly historical, and shows what it was several centuries ago, while it conveys only a faint conception of what it is now. In fact, there is not, nor ever was, practically any such thing as felony in the United States. For while we speak of certain crimes, such as larceny, robbery, burglary, rape, arson, murder, etc., as felonies, yet it is mainly because we have been taught that at the common law they are so denominated. But when we come to apply the ancient English test of felony, as set forth in the above definition, we find that there is not, strictly speaking, any such crime known to our law. Indeed, the rigor of the common law itself has been so far modified by statute in England that there now remains but very few of the characteristics of the ancient crime of felony. The change in the form of the indictment, however, has not kept pace with the change in the consequences of the crime, so that it is still necessary to allege in all of those cases where the crime was a felony at the common law, and where the statute has not provided what should constitute the offense, or prescribed a form of indictment, that it was done 'feloniously." D'

Aside from treason, a crime is either a felony or a misdemeanor, the word ""misdemeanor" being applied to any offense less than a felony; and in most jurisdictions crimes which were classed as felonies at common law remained felonies, while other crimes have been made felonies by statute. The state, in the case at bar, does not deny that the crime of manslaughter was a felony at common law, but does not concede that it is so regarded in this jurisdiction. We have not been cited, however, to any statute changing its common-law classification, or any decision of this court holding that it is not a felony. On the contrary, the decisions cited apparently support the contention that it is regarded as a felony in this state.

But the fact that a crime is classified as a felony does not necessarily fix it as infamous. A conviction of the crime of manslaughter does not disqualify one as a witness. State v. Laboon, 107 S.C. 275, 92 S.E. 622, L. R. A. 1917F, 896. On the other hand, a conviction of petit larceny is of the crimen falsi, rendering a witness incompetent to testify. State v. James, 15 S.C. 233. It is seen, therefore, that a greater odium attaches to petit larceny, which carries slight punishment, than to manslaughter, which carries punishment by imprisonment from two to thirty years.

While we conclude that the trial Judge was wrong in stating to the jury that manslaughter is not a felony in this state, we do not think any harm was done. He instructed them fully, telling them that a conviction of that crime carries punishment by imprisonment, in the discretion of the court, from two to thirty years. He also told them that a conviction of murder would carry sentence of death by electrocution, and that such conviction, with recommendation to the mercy of the court, would fix the punishment at life imprisonment. Under these instructions, we think that the jury, composed of men seeking the truth, felt that, under the facts and circumstances disclosed by the evidence, a conviction of manslaughter, carrying the lesser penalty, would be the correct verdict.

In charging the jury with regard to the subject of "reasonable doubt," the trial judge told them that it is not a flimsy or fanciful doubt, but is a ""reasonable doubt arising out of the testimony." The appellant contends that the court committed error in not adding "or arising out of the lack of testimony, or lack of evidence," for the reason that a reasonable doubt may arise out of a lack of evidence as well as out of the evidence itself, and it was harmful to the defendant not to so charge.

In the case of State v. Abercrombie, 156 S.C. 375, 153 S.E. 344, 345, this question was passed upon, the same contention being made there as here. The court said:

"The appellant also complains that the court erred in instructing the jury as to a 'reasonable doubt.' In this connection, the trial judge charged that the burden of proof is on the state, and that before a conviction can be had the guilt of defendant must be shown beyond a reasonable doubt, and added: 'And the grounds of that doubt must be found in the evidence that is adduced in the trial of the case.' The appellant urges that this was error, for the reason that a reasonable doubt may arise, not only from the evidence adduced, but from a want of evidence, and that the court's charge excluded all reasonable doubts that may have arisen from the lack of evidence. No decision of this court is cited to support this contention, but our investigation leads to the conclusion that it is supported by the greater weight of authority."

It appears that this court was of opinion that the trial judge should have charged as contended for by the appellant; but held that the failure to do so, if error, was rendered harmless when all that was said with regard to reasonable doubt was considered. In that case, the trial court told the jury, among other things, that the law...