State v. Underwood

• Decision Date: 31 December 1923
• Docket Number: 11385.
• Parties: STATE v. UNDERWOOD.
• Court: South Carolina Supreme Court

120 S.E. 719

127 S.C. 1

STATE v. UNDERWOOD.

No. 11385.

Supreme Court of South Carolina

December 31, 1923

Appeal from General Sessions Circuit Court of Greenwood County Hayne F. Rice, Judge.

Clayton Underwood was convicted of murder, and he appeals. Reversed and remanded for a new trial.

The additional exceptions ordered to be incorporated in the report of this case were as follows:

Exception 5. It was error to try the defendant, Clayton Underwood, in a prejudicial atmosphere where it was necessary to charge the jury:

"If you, or any one of you 12 men, in passing on this issue, allow yourselves to be influenced by what people outside say about it, then such juror is not fit to sit on the jury box, and his name should be forever stricken from the roll of jurors, and never again should he be allowed to come in this courthouse as a juror to try any case. You are sworn, as well as I, to do that which is right in any case. It is not for us to say what might or might not be a man's reputation. You do not come into court to try a case on reputation; you try it upon the evidence as adduced upon the witness stand and the law as given to you by the presiding judge. When it comes to a condition in which our juries do not do that, our whole jury system is a failure."

The error being: (a) Under the Constitution and laws of the state of South Carolina the defendant was entitled to a trial free from prejudice and passion, and under conditions where it was not necessary to warn the jury against what people on the outside might say about the case, and to warn them against what they might think of the reputation of the defendant or his codefendant.

Exception 7. It was error in his honor to charge in reference to the law of manslaughter as follows:

"It must be something done to him, some act done to him or some immediate member of his family, in his presence, such as in a man of ordinary reason, prudence, and firmness would create a high degree of heat and passion, such as, for instance, spitting in a man's face, shoving him off the sidewalk, kicking him, or some other indignity such as is calculated to make a man angry."

The error being:

(a) That his honor limited the provocation to the defendant, or some immediate member of his family in his presence whereas, under the facts of this case, if believed by the jury, the provocation was sufficient, whether done in the presence of the defendant or not, to have created such sudden heat and passion on the sight of the deceased as to have reduced the killing from murder to manslaughter.

(b) The provocation need not, in all instances, be something done to the defendant, personally, or to some member of his family in his presence, and the provocation in this particular case, if believed by the jury, was sufficient, upon first sight of the defendant, to have aroused the sudden heat and passion which is contemplated by law.

Exception 8. It was error in his honor in his charge of the law of self-defense to charge the jury that the third element in this defense was "that there was no reasonably safe means of retreat," and "that the law requires the defendant to retreat if he can retreat with reasonable safety to himself."

The error being:

(a) That this usual element in the law of self-defense had no application to this case, for the reason that the defendant was at his own home, and the judge should have qualified his charge so as to tell the jury that it is never necessary for a man to retreat from his own home, but, on the other hand, has the right to use such force as is necessary to remove the person from his premises, or the premises where he resides, who is about to make an attack upon him, and this was especially applicable to this case, where the testimony tends to show that the said Mitchell had made an attack at a previous time upon the wife of the defendant.

Exception 9. It was error in the presiding judge to instruct the jury that if they should return a verdict of manslaughter as to Underwood, then they must return a verdict of not guilty as to the defendant Hughes, and in connection therewith saying to the jury: "In this case I charge the jury that, under the facts of this case, if you find Underwood guilty of manslaughter, you must find a verdict of not guilty as to Hughes."

The error being:

(a) That in so charging the jury this defendant was prejudiced, because those of the jury who desired to convict the defendant Hughes were, on account of the said charge, prevented from consenting to a verdict of manslaughter against this defendant.

(b) This defendant had the right to have his case tried under the law and facts applicable to it, without reference to any result it might produce in the case of the defendant Hughes.

(c) In stating to the jury "in this case," and "under the facts of this case," if they found this defendant guilty of manslaughter, they should find the defendant Hughes not guilty, the presiding judge invaded the province of the jury and charged upon the facts of the case to the prejudice of this defendant, and practically told the jury that if the defendant Hughes had anything whatever to do with the killing, then it would be necessary to find this defendant guilty of murder, or acquit the defendant Hughes.

Exception 10. It was error in the presiding judge to charge the jury as follows:

"But after the thing is over with, I know of no law on the statute books or the common law that authorizes a man to seek out her seducer and kill him. In such case, if he does so, he takes the law in his own hands. In a case of that kind, where his wife has been assaulted or an attempt to assault has been made on her, if the thing had passed off and there is nothing he can do to protect her, it is not his business to seek the man and kill him. It is his business to have the man arrested and brought to the courthouse and tried and if found guilty sent to the electric chair."

The error being:

(a) The presiding judge invaded the province of the jury and charged upon the facts in violation of the Constitution.

(b) In so charging the presiding judge nullified the charges which he had theretofore made in reference to the defense of temporary insanity and self-defense.

(c) In so charging the presiding judge deprived this defendant of the principles of law applicable under the facts of this case to manslaughter, and practically directed the jury to find the defendant guilty of murder.

Exception 11. It was error in his honor to refuse to charge the jury, at the request of the defendant's counsel, the rights of the defendant, where he finds that the assaulter has returned to the scene of the assault and the home of the defendant.

The error being:

(a) Under such circumstances, the defendant would have the right to assume that the deceased had come there for no proper purpose, and would have had the right to have acted more harshly and upon less provocation under those circumstances than he otherwise would have had.

Exception 12. It was error in the presiding judge to charge the jury to the effect that the state is not bound to prove a motive.

The error being:

(a) Under the facts of this case, motive was the decisive factor, and the jury ought not to have been allowed to assume or theorize as to the motive, without any facts to support it.

(b) After the introduction of all of the testimony, there could be no presumption of malice, and malice, if it existed, must have been found from the facts, and under the facts of this particular case motive was the controlling factor as to whether the homicide was committed with malice.

Exception 13. It was error in his honor to charge the jury in reference to malice as follows:

"It may be expressed by word of mouth, where one speaks ill toward another; his action might express malice towards him. If he goes and does something to the other that he knows will cause his death, or as a reasoning human being ought to know will cause his death, and does cause his death, then his very deed shows how he feels towards that person, if he goes and seeks out the other person with the intention and purpose to do him hurt and injury, and there the action of the man shows malice in his heart towards the other person. The law says that where one shoots another down in cold blood, without mitigation, justification, or excuse, there his action, what he does, shows what is in his heart, shows malice in his heart toward the person killed. Express malice is nearly always directed towards some particular person or persons; on the other hand, implied malice is not directed toward any particular person or persons,

but toward all mankind in general. The law says that when a man does any deed which shows that he has a wicked, depraved, malignant spirit, without regard for his social duty, and which shows that he is absolutely without any regard for the lives and safety of those around him, the law says that in that case, even though that act may not be directed toward any particular person, if death results from it, the law presumes malice from the doing of the deed. (When we come to surgical operations that is different.) Whenever a man goes and does that which he knows, or as a reasoning human being ought to know, will result in the death of some person, and it does result in death, then the law says that he has malice in his heart although--"

The error being:

(a) That after all of the facts are in there is no presumption of malice, but it is a question of fact for the jury to determine from all of the testimony in the case.

(b) The charge as to malice taken as a whole directs the jury to presume malice from the very fact that one person has killed another and thus destroys the provisions of law as to manslaughter and...