State v. Summer

• Decision Date: 18 April 1899
• Parties: STATE. v. SUMMER.
• Court: South Carolina Supreme Court

32 S.E. 771
(55 S.C. 32)

STATE.
v.
SUMMER.

Supreme Court of South Carolina.

April 18, 1899.

Homicide—Manslaughter — Self-Defense —Evidence — Objections — Witnesses — Impeachment—Reasonable Doubt—Instructions.

1. A charge that a reasonable doubt is a strong doubt, based on the testimony, is correct.

2. It is not error to charge that one cannot surround another with circumstances which he knows will be resented by the other, and then mention the fact to him to make him fight, for the purpose of getting an opportunity to kill him under circumstances which might appear sudden and unexpected.

3. The court charged that he is guilty of manslaughter who kills a human being in a sudden heat and passion, on a present provocation legally sufficient to create that sudden heat and passion, which must partially or entirely dethrone the reason, and before he cools or had time to cool. Held, that it was not error to say, also, that "some people don't cool, and some don't want to cool, " the statement not tending to prejudice the jury.

4. Where the court charged that it is a man's duty to defend himself, and that he is not bound to endanger himself by retreating, nor turn out of his adversary's way, it is not error to charge that, if there is any reasonable, safe way to escape, he ought to do so, rather than take life.

5. Under the constitutional provision forbidding a recital of the evidence, it was harmless to charge, "You must consider the meeting of the parties, " the court disavowing reference to the testimony, and expressly basing his remark on the indictment and the arguments.

6. It is not too late to object to the introduction of a witness after he has been offered, accepted by the court, sworn, and partially examined.

7. Defendant sought to justify the killing of deceased by evidence that he was a violent, dangerous man, and so known in the community and by defendant. The state introduced witnesses to prove, in reply, the good conduct of deceased and his general reputation for peace and order. Held, that it was not error to exclude a witness offered by defendant to impeach the general character of state's witnesses, who testified for the first time in reply; the exclusion being within the discretion of the court.

8. The widow of deceased having testified, on cross-examination by defendant, in denial of an imputed act of violence on deceased's part, she could not be contradicted by defendant; the question of the commission of the act being collateral.

Pope, J., dissenting.

Appeal from general sessions circuit court of Lexington county; D. A. Townsend, Judge.

Charles C. Summer was convicted of murder, and he appeals. Affirmed.

Johnstone, Welch & Wingard, for appellant

J. W. Thurmond and Efird & Dreher, for the State.

POPE, J. The defendant, having been convicted of murder, with a recommendation to mercy, and having been duly sentenced, now appeals from the judgment of the court. We will now pass upon these grounds of appeal, 11 in number, in their order.

"(1) Because his honor, the presiding judge, erred in charging the jury as follows: 'A reasonable doubt is a strong doubt based on the testimony.' " The language of the presiding judge in this connection was: "The state is bound to make out its case beyond a reasonable doubt; that is, before you can convict you must be satisfied beyond a reasonable doubt that the defendant is guilty, —'beyond a reasonable doubt' remember the words. If there is a reasonable doubt in the mind of any juror you cannot convict. That is the rule that governs the state. A reasonable doubt is a strong doubt based on the testimony, not on some imaginary matter outside." This court in the case of State v. Coleman, 20 S. C. 455, used this language: "We know of no law or practice which would permit this court to hold a circuit judge in error for charging a jury, * * * or for instructing them, that the phrase 'a reasonable doubt, ' used in the books, means a 'serious, well-founded, substantial doubt'" And in the case of State v. Senn, 32 S. C. at page 404, 11 S. E. 295, this court said: "It cannot be necessary to do more than repeat what this court said in State v. Coleman, 20 S. C. 455, that *we know of no law or practice which would permit us to hold a circuit judge in error for instructing a jury that the phrase "reasonable doubt, " used in the books, means a "serious, well-founded, substantial doubt."' Substitute the word 'strong' for that of 'serious, ' and the cases are identical." This exception, upon the authority of the eases just cited, must be overruled.

"(2) Because the presiding judge erred in charging the jury as follows: The law would say you cannot place your enemy, antagonist, or fellow being, —can't surround him, —with such circumstances which you knew he would resent, and then mention it to him, —bring it up to him, —to make him fight just to get to

[32 S.E. 772]

kill him under circumstances which might appear to be sudden and unexpected. The law says you cannot do that.' " While the circuit Judge was discussing the crime of manslaughter, after a very careful delineation of the principles of the law governing this phase of homicide, he, rather by way of summing up the law, said: "You see, then, manslaughter is killing without malice, but if the killing was done under circumstances which showed that previous criminal intention existed to bring about the fight, and to get to kill his assailant, the law would say that was murder; you brought that about, "—and then immediately follows the language embodied in this excep-. tion. And the charge of the judge on this point has this language, as a part of the paragraph of his charge set out in this exception: "If, although the fight might be sudden,, yet it appears that there was a predetermination on the part of the slayer to bring it about, then, if...