State v. Thrailkill

• Decision Date: 15 March 1905
• Citation: 50 S.E. 551,71 S.C. 136
• Parties: STATE v. THRAILKILL.
• Court: South Carolina Supreme Court

50 S.E. 551

71 S.C. 136

STATE v. THRAILKILL.

Supreme Court of South Carolina

March 15, 1905

Appeal from General Sessions Circuit Court of Saluda County; Watts Judge.

Morgan Thrailkill was convicted of murder, and appeals. Affirmed.

J. N O. Gregory, Able & Blease, C.J. Ramage, and E. F. Strother (D. S. Henderson and Johnstone & Cromer, of counsel), for appellant. George Bell Timmerman, Sol., and J. Wm. Thurmond for the State.

WOODS J.

The defendant, Morgan W. Thrailkill, shot and killed Benjamin Burton on 27th day of April, 1904, at the town of Monetta, in Saluda county. On his trial he set up the plea of self-defense. He was convicted of murder, with a recommendation to mercy, and was sentenced to life imprisonment. The following brief statement of facts indicating the main issues made at the trial will be sufficient for an understanding of the questions involved in the appeal: On the morning of April 27, 1904, the defendant and his son, Clarence Thrailkill, drove to the store of Lackey Burton, the brother of Benjamin Burton, who was killed, having a loaded gun in the buggy, and defendant demanded of Lackey Burton the return of a pistol claimed by him, which it seems had been pawned with Lackey Burton by a negro. Lackey Burton testified that, without aggression on his part, the defendant undertook to shoot him from the buggy with the shotgun; that he seized the gun to protect himself, and while so engaged Clarence Thrailkill shot him with a pistol. The Thrailkills both swore that Lackey Burton refused to give up the pawned pistol, and undertook to take the gun from the buggy by force, without any act of aggression on their part; and Clarence Thrailkill testified he shot in defense of his father, because he saw Lackey Burton trying to draw a pistol while struggling for the possession of the gun. The shot frightened the mule hitched to the buggy, and, while the Thrailkills were getting him under control, Lackey Burton started to run across the railroad to the store of Steven & Catoe, 75 to 100 yards distant. The defendant, Morgan Thrailkill, had in the meanwhile gotten out of the buggy, and rapidly followed Lackey Burton with his gun, in order, as he said, that he would be close enough to shoot if Lackey Burton tried to shoot him. Lackey Burton and all the eyewitnesses except the Thrailkills testify that the defendant, while pursuing, raised his gun at least once as if to shoot, but another person was in line with Lackey Burton, who might have been hit if he had fired. The court allowed witnesses for the state to testify that one of the bystanders (Bud Gantt) at this juncture "hollered" to Lackey Burton, "Run; Morgan is coming with his gun and will shoot you." The evidence for the state was to the effect that Morgan Thrailkill was prevented from entering the store by Steven, one of the proprietors. This ended Lackey Burton's connection with the matter. Boyce Gantt, a witness for the state, was allowed to testify that he went to the home of Benjamin Burton, about 300 yards distant, to carry a message "about Lackey being shot." The message was given to Mrs. Burton, who communicated it to her husband. Benjamin Burton then armed himself with a gun and pistol, and went to the scene of the trouble. Upon Benjamin Burton's approach, he was shot and killed by the defendant, without a word being exchanged, from 10 to 20 minutes after the shooting of Lackey Burton. The witnesses for the state testified that Benjamin Burton had his gun under his arm, in no position to shoot, and that he not only made no effort to do so, but did not appear to see defendant when he was killed. Defendant and his son Clarence testified the deceased was in the act of raising his gun to shoot when the defendant fired.

The defendant first insists that all evidence as to the difficulty between the defendant and Lackey Burton should have been excluded, because it occurred before the deceased, Benjamin Burton, arrived on the scene. It will be observed that the main issue was whether the defendant killed in self-defense. Upon this point the evidence for the state and for the defense was directly opposed. All that had preceded and led up to the fatal encounter was therefore highly enlightening to the jury, as indicating the state of mind and the motives and purposes which would probably be operating on the parties at the time. Nowhere have we found the true rule better stated than in State v. Smith, 12 Rich. Law, 430, 442, where Judge Johnstone says: "The circumstances must determine the intention and the case. I do not mean the mere circle of facts immediately surrounding the parties at the moment of the fatal act, but the facts, more or less remote, according to the case, which may reasonably be supposed to have been in the minds or contemplation of the parties at that time; the facts to which their conduct may be supposed to have tacitly referred; the facts which may be reasonably intended to have prompted the fatal act. When the jury who are to decide on the intent have these facts before them, and not till then, they have the means of intelligent and conscientious judgment." See, also, State v. McDaniel, 68 S.C. 304, 47 S.E. 384. The same principle applies to the acts and statements of Clarence Thrailkill in the presence of his father, the defendant. The first, third, and sixth exceptions are therefore overruled.

The defendant's next position is that the warning given by Bud Gantt to Lackey Burton while he was retreating from defendant, "Run; Morgan is coming with his gun and will shoot you," should have been excluded, because it conveyed to the jury the opinion of an outsider. The distance from his own store, where Lackey Burton was shot, to the store of Steven & Catoe, is not over 100 yards; and as Lackey Burton was going from his store to Steven & Catoe's store, and defendant was following at a rapid pace from almost the same point in the same direction, the distance from the witness, who was at the store they were approaching, could not have been as much as 100 yards from the defendant. It was therefore extremely probable that defendant heard the warning, and had opportunity to disavow any intention to shoot. But assuming that the warning was an expression of the witness as to the intention of the defendant not spoken in his presence or hearing, Bud Gantt and several other eyewitnesses were sworn, and testified that defendant was pursuing Lackey Burton, and while doing so did actually raise his gun as if to shoot him. Hence the mere exclamatory warning of Bud Gantt, consequent upon seeing the gun raised as if to shoot, was made altogether immaterial, and was swallowed up in his direct statement, and the statements of the other witnesses, in the presence of the jury that he actually saw the defendant raise the gun as if to shoot. The testimony as to the warning was therefore of no consequence, and its admission, even if erroneous, was harmless. For these reasons, the second and fifth exceptions are overruled.

The fourth exception charges error in the ruling that, while the general reputation of the deceased for turbulence could be proved by the witness Perry, particular acts of violence should be excluded. This ruling was clearly correct. State v. Dill, 48 S.C. 249, 26 S.E. 567. But in no event could the exception be sustained, because the defendant was allowed to bring out from the witness that he had had trouble with the deceased, who had drawn his pistol on him and this...