State v. Gandy , 113 S.C. 147 ( 1919 )

The opinion of the Court was delivered by

Mr. Justice Hydricic.

On indictment for murder, defendant set up self-defense, and was convicted of manslaughter.

In declaring the law of self-defense to the jury, after saying that defendant must prove that he was without fault in bringing on the difficulty, the Court continued:

“If he has shown that by the preponderance of the testimony, he must go further and show that any man of ordinary prudence and courage would have been warranted in coming to the conclusion that the necessity did then and there exist to take life, to save himself from serious bodily harm, or from losing his own life. If he has shown that, he is required to go further and show by the same measure of proof that the necessity did then and there exist for him to take the life of the deceased. A man may act, however, from appearance, and if it turns out, if the appearances are such that a man of ordinary courage, firmness, and prudence would have been justified in coming to the conclusion that the necessity did then and there exist to strike to save himself from serious bodily harm or death that would be suf ficient, although it turned out afterwards that there was no actual danger present, and that the necessity to strike did not exist.”

1 Exception is taken to the words italicized, on the ground that the Court thereby imposed upon defendant a greater burden than the law' required. The law imposes on a defendant thé burden of proving, not that the necessity did in fact exist, but that the circumstances were such as to warrant a man of ordinary reason and courage in concluding that it did exist, and that defendant himself did in fact so believe, and no doubt that is really what the Court intended to say.

2 Standing alone, the instruction complained of would be erroneous; but when it is read in connection with the preceding and following sentences, we are satisfied the jury were not misled, especially when it is considered in connection with what immediately follows it, in which the jury were told that defendant had the right to act upon appearances, and if they were such that a man of ordinary prudence and courage would have been justified in coming to the conclusion that the necessity did exist, that was sufficient, although it afterwards turned out that it did not in fact exist, which shows that defendant was not required to prove the necessity did in fact exist, but only that it appeared to exist.

Judgment affirmed.