State v. Crosby ( 1911 )

The first and second exceptions, considered together, are not entirely without merit. The defendant had done all the law required him to do to secure the attendance of the witness, Bailey. He had him put under recognizance to appear and testify. Upon his failure to appear, the defendant's attorneys presented an affidavit, in support of their motion for continuance, which fully complied with rule 27 of the Court. Even then, it was within the discretion of the Court, considering the materiality of the testimony of the absent witness, as it appeared from the affidavit, to order the case to trial with or without requiring the solicitor to admit, as the condition of refusing the continuance, that the absent witness would testify, if present, as stated in the affidavit. But, in refusing the motion for continuance, the presiding Judge said: "If Mr. Bailey, a white man, knows anything about this case, it being a murder case, he should have been here. Where a witness, white man, with any intelligence, who claims to be an important witness in a murder case, would go off without leave of the Court, unless he had some good excuse, so far as the Court is concerned, it is very doubtful whether the Court would put much faith in what he had to say about the case. The Court rules that the case goes on to trial." The Court ordered a bench warrant to be issued for the arrest of the absent witness, and though he was not arrested in time to testify at the trial, his testimony as it appeared in the affidavit of defendant's attorneys, was admitted and allowed to go to the jury — whether as a condition of ordering the case to trial or not does not appear. But, in either case, his testimony had already been discredited by the remarks of the presiding Judge in the presence of the jurors. It did not appear why the witness was absent. He may have had a good and sufficient excuse. The remarks of the presiding Judge, discrediting his testimony, were uncalled for and not warranted by the mere circumstance of his absence, and they may have prejudicially influenced the consideration of his testimony by the jury.

The testimony shows that the fatal encounter occurred at the defendant's home. He was, according to his testimony, at the time of firing the fatal shot, on his own piazza, within a few feet of the door of his dwelling house. According to the testimony of the State's witnesses, he was in his yard. In either view of the testimony, he was within the curtilage of his dwelling house. According to the testimony of the State's witnesses, the defendant killed deceased without provocation. According to his testimony deceased was making an unprovoked attack upon him. We do not know whether the jury believed the testimony of the State's witnesses or that of the defendant. They may have believed that of the defendant. But, even if they did, under the charge, they may nevertheless have convicted the defendant of murder, because they believed that he could have avoided the necessity of killing the deceased by retreating into his house. But if the defendant's testimony be true, he was not bound to retreat. In this view of the evidence, the charge was erroneous and prejudicial. State v. Brooks, 79 S.C. 144, 60 S.E. 518. I do not agree to the proposition that a positive error in the charge cannot be made the ground of exception, unless a request to charge otherwise has been presented. A party has a right to presume that the Court will charge correctly the law applicable to the case as made by the testimony. If the Court failed to charge a proposition of law which might be applicable to some special phase of the testimony, a party cannot complain of such omission as reversible error, in the absence of a request to so charge. But when the Court charges a correct proposition of law, as applicable to the facts of the case, when it is not, or when the Court charges incorrectly the law applicable to the facts of the case, and when it is made to appear that the error was or may have been prejudicial, there is no reason why the party prejudiced thereby should not be allowed to take advantage of such error on appeal, without having preferred any request to charge otherwise. The difference is in errors of omission and errors of commission. Applying the principle: If the Court had said nothing about the duty of a defendant who pleads self-defense to retreat, the defendant could not have complained of error in failing to charge that he was not bound to retreat, when attacked upon his own premises, in the absence of a request to so charge. On the other hand, when the Court charged that the defendant was bound to retreat, the charge was erroneous when applied to one phase of the evidence. The fifth exception should, therefore, be sustained.

There was also prejudicial error in the definition of malice. The only difference between murder and manslaughter lies in the presence or absence of malice in the heart of the slayer. If the killing was done with malice, it was murder. If it was done unlawfully, but without malice, it was only manslaughter. It was, therefore, of the utmost importance that the jury should have been correctly informed what malice in law is. Otherwise, they could have had no adequate conception of the difference between murder and manslaughter. It seems clear to me that the definitions of malice given in the charge, which is correctly quoted in the sixth and seventh exceptions, were erroneous and misleading in the particulars pointed out in these exceptions. In State v. Rochester,72 S.C. 194, 51 S.E. 685, this Court held that a definition of malice similar to that contained in the sixth exception was erroneous, and reversed the judgment, notwithstanding the trial Judge afterwards correctly charged the law of manslaughter; because, said this Court, "the charge as to murder was just as explicit. The jury had no greater right to disregard the charge as to murder than that relative to manslaughter, and it is impossible to tell which may have influenced them in rendering their verdict." So, here, it is impossible to tell which definition of malice the jury accepted and based their verdict on. That contained in the sixth exception, being less metaphysical and more easily understood than the more ancient definition in the seventh exception, is the more likely to have been accepted and applied by the jury, though the other is not accurate, as pointed out in the exception. Under the erroneous definition of malice pointed out in the sixth exception, the jury may have convicted the defendant of murder, when, if malice had been correctly defined, they would have convicted him of manslaughter. The error was not corrected in any subsequent part of the charge. This exception should be sustained.