State v. Symmes

• Decision Date: 21 February 1894
• Citation: 19 S.E. 16,40 S.C. 383
• Parties: STATE v. SYMMES.
• Court: South Carolina Supreme Court

19 S.E. 16

40 S.C. 383

STATE

v.SYMMES.

Supreme Court of South Carolina.

Feb. 21, 1894.

Murder—Evidence—Competency—Self-D«-fense—Instructions.

1. On a murder trial, where defendant testified that deceased was within a foot or two" of him when he fired the first shot, it was competent to admit the clothing of deceased, and testimony of witnesses that they had examined it the evening after the homicide and found no powder burns thereon.

2. A charge, on the law of self-defense, that there must have been a necessity to take life, of which the jury are the judges; that defendant must have believed that he was in such immediate danger of losing his life or of serious bodily harm as rendered it necessary to take his assailant's life, and that defendant's actions should be judged by what a man of ordinary reason and firmness would have done on such occasion, —is correct.

Appeal from general sessions circuit court of Pickens county; James F. Izlar, Judge.

Whitner Symmes was convicted of manslaughter and appeals. Affirmed.

The following is the charge of Izlar, J.:

"The prisoner at the bar is charged with one of the highest crimes known to the law. This being so, it is important that you and I should realize the grave responsibility which rests upon us, In the discharge of our several and respective duties. It becomes my duty to give you, as best I may, the law by which you must be governed in the investigation of this serious charge. Having received the law, then it becomes your duty to find the facts surrounding this fatal difficulty, fromthe testimony as you have heard it from the witnesses. You are the sole judges of the facts. I cannot invade your province and pronounce a conclusion as to facts. I cannot even intimate an opinion as to the facts. But, while this is so, you must take the law as I shall give it to you, and, when you have found the facts, you must apply the law to the facts found, and determine the guilt or innocence of the prisoner. So you see that the responsibility which rests upon both you and me is very great and very serious. You will remember that the oath which you have taken requires that 'you shall well and truly try, and true deliverance make, between the state of South Carolina and the prisoner at the bar, whom you shall have in charge, and a true verdict give, according to the evidence.' By this oath you are required well and truly to try all the issues between the state and the prisoner. You are not to be influenced by passion, swayed by sympathy, overawed by fear, or actuated by friendship; but well and truly try, and true deliverance make, and a true verdict give, according to the evidence. This means that the verdict you shall give shall speak the truth according to the evidence. So, I say to you, gentlemen, weigh well, consider carefully, and decide honestly all issues arising in the cause, and let the verdict you render be a true deliverance—that, is, speak the truth, —according to the evidence and the best of your understanding. Homicide, Mr. Foreman and gentlemen of tbe jury, is of three kinds. We have justifiable, excusable, and felonious homicide The first of these has no place in this case, and only one kind of excusable homicide, namely, that, of self-defense. Felonious homicide, or murder, is the killing of any person with malic? aforethought, either express or implied. There can be no murder where the killing is not done with malice Malice means an evil intent. It may exist in the human heart for years, or it may arise on the instant: but. if it is present at the time the fatal blow is given, or the fatal shot is fired, the killing would be murder. Express malice is where the killing is done with a sedate and deliberate mind, and formed design. This formed design may be evidenced by such external circumstances as lying in wait, antecedent menaces, formed grudges, and concocted schemes to do another some bodily harm These external circumstances discover the inward intention with which the act is done. Malice is sometimes implied in law from the weapon used. Where a party uses a deadly weapon and takes the life of another, the law presumes that the killing is done in malice. It is sometimes implied from any deliberate cruelty inflicted by one person upon another, no matter how sudden it may be, where the killing is done with a sedate and deliberate mind. Even where it is done suddenly, the law will imply malice, because it is to be presumed that no one will inflict deadly injury upon another without malice, where the killing is without, any, or without considerable, provocation. Thus, where one person kills another suddenly, without any, or without considerable, provocation, the law implies malice; for no person, unless of an abandoned heart, would be guilty of such an act upon a slight, or no apparent, cause. In such cases, no matter how suddenly the killing would be done, the law would presume malice. The law implies malice from every intentional killing; yet, where all the facts are out, there is no room for presumption, and the state, who affirms the malice, must prove it. Now, Mr. Foreman, manslaughter is the unlawful killing of another without malice, express or implied. So that, you see, the difference between murder and manslaughter is the malice. Where it is done without malice, it is manslaughter; where with malice, it is murder. It is sometimes defined to be the killing in sudden heat and passion, and on sufficient legal provocation. I charge you it is not every killing in passion that the law mitigates down to manslaughter. It must be done under legal provocation. It must be passion justly excited by legal provocation. Now, what is legal provocation? No provocation can justify or excuse the killing of another, but may reduce the killing from murder to manslaughter. Mere words of reproach, however grievous, or insulting gestures or actions, are not adequate provocation. Words alone are not sufficient to reduce the killing from murder to manslaughter. Neither is the fact that the deceased used words sufficient to bring on a difficulty, or his conduct was calculated to induce the belief that the deceased intended to bring on a difficulty, such a provocation as will reduce the killing from murder to manslaughter. If one is provoked by bare words, and a fight ensues, and he kills his adversary with a deadly weapon, it is murder; because, as I have said, bare words are not sufficient provocation to reduce the crime to manslaughter. But if one assaults another, giving him a severe blow, and the person stricken strikes back with a deadly weapon, and death ensues, the killing would be manslaughter. Again, if one resorts to a deadly weapon in resenting an ordinary assault and battery, the killing would at least be manslaughter. The provocation which will reduce the killing to manslaughter must be such as would stir the resentment of a reasonable man. An assault and battery would amount to legal provocation. But an unintentional and trivial assault, such as the mere accidental jostling against a person on the street, would not be sufficient to reduce to manslaughter. But an intentional jostling in a rude and insolent manner, so as to provoke a quarrel, if the same be hastily resented in hot blood by the person jostled, and he takes the life of his assailant, would be sufficient, and the killing would be manslaughter. The defense set up is self-defense. I charge you that a man hasa right to defend himself against an attack, but he is not, therefore, justified in killing his assailant. If he is justified depends on the nature of the assault. A violent defense can only be employed when there Is a violent attack. The violence of the assault must justify the taking of life in self-defense, and the burden of proving it rests with the defendant; and he must prove his plea, to your satisfaction, by the preponderance of the evidence. You weigh the evidence in support of the plea, and you weigh the evidence against the plea, and whichever way the scales turn, that would be the preponderance. So, you weigh the evidence, and the defendant must prove it by the preponderance. If he fails to do it, he cannot ask you to take it as a fact proved that the killing was done in self-defense. To justify killing in self-defense, the defendant must have been at the time in real or apparent danger, imminent and immediate, and not a contingent danger. Homicide may be excused on the ground of necessity alone. There must be an imperious necessity to take life to save life, or to prevent serious bodily harm, to excuse a killing in self-defense. A party need not avoid danger by flight, so long as he is where he has a right to be, and is not the provoker or aggressor in bringing on the difficulty; but if the assaulted party is in fault in bringing on the difficulty, he is bound to retreat as far as possible, consistent with safety, without putting himself in danger, unless prevented by the fierceness of the attack. Under these circumstances, if he kills his adversary to save his own life or prevent great bodily harm, it would be excusable homicide. It would be excusable homicide if he did this. The deceased was fatally shot in the office of the defendant. This was not his dwelling house, but his place of business. As I understand it, it was a public office, where the defendant met those who had business with him. It was, therefore, not so sacred a place as a man's dwelling house, where he and his family reside. If he gained peaceable entrance to the office, although he refused to leave when ordered out, the defendant was not justified in killing him; and if he did so under these circumstances alone, the law will not excuse him. If the deceased intruded himself into the office of the defendant, and would not leave when requested, the defendant was justified in using just such force as was necessary for the purpose. If he used greater force than was necessary, and took the life of the deceased with a deadly...