State v. Starnes

• Decision Date: 20 August 1948
• Docket Number: 16122.
• Citation: 49 S.E.2d 209,213 S.C. 304
• Parties: STATE v. STARNES et al.
• Court: South Carolina Supreme Court

49 S.E.2d 209

213 S.C. 304

STATE v. STARNES et al.

No. 16122.

Supreme Court of South Carolina

August 20, 1948

Harrison R. Swink, of Gaffney, C. T. Graydon, of Columbia, and J. Z. McKown, of Gaffney, for appellants.

Samuel R. Watt, Sol., of Spartanburg, for respondent.

TAYLOR Justice.

This appeal arises out of the conviction of the two appellantsJames Starnes and John P. DeStaffino, who were jointly indicted in the Court of General Sessions for Cherokee County and were tried in that Court on Thursday, March 20, 1947.The defendants were found guilty of manslaughter and a sentence of twenty years in the South Carolina Penitentiary or a like term on the public works of Cherokee County was imposed.Timely notice of intention to appeal was given by both defendants.

The appeal of the defendant DeStaffino will be first discussed.This appellant makes only two exceptions, the first of which is that the Trial Judge erred in failing to charge the Jury that the self-serving statements of the defendantJames Starnes made to the officer were hearsay as to the defendant DeStaffino.

The second exception of the appellant DeStaffino charges error on the part of the Trial Judge in failing to charge the Jury on involuntary manslaughter, there being, as the exception states, testimony tending to show involuntary manslaughter.

As to the first exception, it appears in the record that at the close of the charge to the Jury, the Judge inquired 'Anything further for the defendant DeStaffino?' to which Mr. Godshall, attorney for that defendant, replied 'Nothing further, your Honor.'It has been repeatedly held that unless counsel for a party calls the attention of the Trial Judge to something which it is desired be charged particularly where inquiry is made as quoted, there is no error on the part of the Trial Court in failing to charge.This exception is accordingly overruled.

With regard to the second exception of the defendant DeStaffino, in our view it is extremely doubtful whether, under the facts in the case, there is any element of involuntary manslaughter such as to entitle that defendant to charge thereupon.As a matter of fact, DeStaffino bottomed his denial of guilt on self-defense.

'Q.What were you doing shooting up in the air when the man was trying to take your life?A.I was shooting in self-defense, to get him to stop shooting at me; I was shooting to keep him from shooting me.'

In the second place, this exception must be overruled for the same reason given as to the first; namely, the inquiry of the Trial Judge at the close of his charge as to whether anything further was desired for the defendant DeStaffino, and counsel's negative reply thereto.

All exceptions as to the defendant DeStaffino are accordingly overruled and the appeal dismissed.

The appeal as to the defendant Starnes, in all frankness, has occasioned this Court considerable difficulty.The Court has accordingly very carefully and studiously examined the record and the authorities applicable, and it is thought well to reproduce briefly in narrative form the circumstances under which this homicide took place.

The scene was near the city of Gaffney at a cafe owned and operated by one Mrs. Grady Spencer, at which food and beer were sold.On the night of January 2, 1947, at about 1:30 A.M., one Floyd B. Coyle was there present along with the two defendants and several other individuals of both sexes when Coyle, who, it was testified, was an innocent bystander, was slain by a gunshot wound in the course of an altercation which arose on the premises.The testimony is somewhat in conflict as to what caused the exchange of shots; several witnesses testifying that the defendant DeStaffino was ordered out of the place, first by the proprietress, Mrs. Spencer, and second by Starnes, her employee.We insert here that Starnes made the establishment his home as well as working there.There is conflict of testimony as to who fired the fatal shot; some witnesses state the shot to have been fired by Starnes; other witnesses were unable to make a definite statement.There is testimony that DeStaffino resisted his ejectment by Starnes; on the other hand, there is testimony indicating that the attempt to eject was not directed primarily toward DeStaffino but toward the group as a whole, not because of disorderly or improper conduct, but because of the lateness of the hour and the desire of the proprietress to close for the night.There is testimony indicating Starnes warned Coyle, the deceased, not to advance on him, and that the affray had its beginning between these two; other testimony states Starnes' warning was addressed to DeStaffino.

The defendant Starnes did not take the stand in his own defense, and accordingly the sufficiency of the State's evidence must be the criterion of measurement for the purposes of this discussion.

The appellant Starnes files sixteen exceptions, the first eight of which relate to errors charged to the Trial Judge in refusing to direct a verdict of not guilty at the close of the evidence produced by the State.

The first exception imputes error in the refusal to direct a verdict of not guilty on the ground that the evidence clearly showed the defendant was in his own place of business and was attempting lawfully to eject a trespasser, and that in so attempting and in the protection of the premises, the deceased was killed.It is unquestioned that the defendant was in his own place of business and home, and there is some testimony indicating he was attempting to eject an invitee, and that in the course thereof the deceased was killed.However, under the particular facts in the instant case and the conflicting evidence above related, we are not prepared to hold as a matter of law that DeStaffino, once an invitee, thereafter became a trespasser so as to entitle Starnes to the immunities which surround the owner of a place of business on such occasions.

A very clear statement of the law is found in 26 American Jurisprudence, page 272, section 171, where we learn the following:

'When attacked in his own house, one may justify or excuse the killing of his assailant if such act is apparently necessary to save his own life or to protect himself from great bodily harm.If an intruder refuses to leave the dwelling house at the request of the householder, the latter may use the necessary force to eject him, and if in the effort to eject him, the life or safety of the householder or a member of the household is jeopardized, he may kill in self-defense.Even though a person has entered the dwelling at the invitation of the householder, his subsequent conduct may be such as to justify the householder in ordering his departure; and upon his refusal to depart, the householder is not required to yield as a mode of avoiding an altercation and apprehended violence, but may use the force necessary or apparently necessary to eject him, and no more.The householder should not, in the first instance, resort to force to repel the intruder.The kind and degree of force which are justified depend on the conduct of the intruder.'

According to the weight of authority (26 American Jurisprudence, page 264, section 257) a person has the same right to defend his place of business that he has to defend his dwelling.We also find in this connection a case from this Court, involving the charge of assault and battery with intent to kill, which expresses the same theory of the law.State v. Rogers,130 S.C. 426, 126 S.E. 329.

This difficulty of the appellant Starnes in the instant case is in bringing himself within the law quoted in the light of the conflict of testimony as to the facts.There is some testimony from which the Jury might have reached the conclusion that Starnes and his co-defendant DeStaffino were venting a private grudge, which leaves for their determination the bona fides of Starnes' claim to a justifiable homicide on either the grounds that he...