State v. Addy , 28 S.C. 4 ( 1888 )

The opinion of the court was delivered by

Mr. Justice McGowan.

The defendant was indicted for the murder of Josephus Swygert at a barbecue dinner given on the premises of one Bisenger, of Lexington County, in August, 1886. There is before us no “Case settled,” but instead, all the voluminous testimony just as it was delivered on the stand. Briefly, it appeared that the deceased was one of those who had provided the barbecue dinner, and the defendant, a neighbor, was present as a patron. It did not appear that there had been any previous quarrel between the parties, but during the day when the deceased was at the pit, where the meat was being roasted, the defendant was seen to lean on him, so as to provoke the remark, “Don’t push me into the hot ashes;” and at another time he put his hand, as if playfully, upon the shoulders of the little daughter of deceased, and acted as though he was going to push her into the pit. Towards the close of the feast the defendant approached J. C. Swygert, a brother of the deceased, at the lemonade stand, and proposed “to buy a piece of pork.” He was told that the deceased, who was at the meat table, would sell it to him, but he declined making application to him ; whereupon the brother went with him to the carving table where the deceased was, and said to him, “Dixon [defendant] wishes to buy a piece of pork.” He was told the pork was out, but there was a very nice piece of beef. This the defendant declined to take, and took up from the table a piece of mutton and commenced crying it aloud, as if selling it at auction to the highest bidder. The deceased said, “Stop that, I don’t want any foolishness here.” Whereupon the defendant dropped the piece of meat, and retired, saying as he went, “If you want anything, come out here,” or something of that character. The deceased did follow him and knocked him down with his fist, and as the defendant rose, or was in the act of rising, he drew from his pocket a pistol and discharged it at the deceased several times, two of the shots taking effect on his body and killing him almost immediately. The deceased was a stout, muscular man, and the defendant was more feeble and had but one arm. The plea was self-defence.

After much testimony, the case was submitted to the jury, and under the charge of the judge (which should appear in full in the report of the case), they found the defendant “guilty of manslaughter,” and he appeals to this court upon fourteen exceptions, which are also in the Brief; but from the view which the court takes, it will not be necessary to state any of them here, except the last seven, which are as follows:

“8. Because his honor erred in charging the jury in respect to matters of fact, so as to control their discretion in determining the degree of credibility which they should attach to the testimony of the prisoner; and so as plainly to indicate the opinion of the court that the prisoner should be convicted of some offence; and so as to bias their judgment and influence and control their verdict against the prisoner.

“9. Because his honor erred in charging the jury that the testimony of the prisoner on trial for his life must be received by the jury ‘with very great allowance; is there one man in a hundred, is there one man in a thousand, taking human nature as it comes, who, under these circumstances, can resist the inclination to sway from the truth ?’ &c.

“10. Because his honor erred in charging the jury in respect to matters of fact, that they might regard the conduct of the prisoner towards the deceased and towards his child as ‘mere sport,’ not intended to irritate the deceased and provoke the quarrel, if nothing had happened afterwards; thereby inducing the jury to infer from the fatal result that, in the opinion of the court and in fact, the prisoner did mean by such conduct to irritate and provoke a quarrel, and thereby controlling the jury to deny to the prisoner an impartial and unbiassed consideration of his plea of self-defence.

“11. Because his honor erred in charging the jury upon matters of fact, that the prisoner was contradicted by all the other witnesses, all of whom were said to have agreed in the main as to what took place — ‘the testimony of the prisoner standing alone, unsustained by a single witness, in reference to those circumstances going to make up a case of self-defence,’ &c.; whereas it is submitted that the testimony of the other witnesses does not agree in many particulars material to this defence, and that in many such particulars the testimony of the prisoner was sustained by several other witnesses, &c.

“12. Because his honor erred in charging the jury upon matters of fact, by impressing them with his own opinion, and thereby inducing them to find that the prisoner could not have honestly believed that he was in danger of his life or of serious bodily harm, for the reason that the prisoner being weak in strength and one-armed, and the deceased a strong and athletic man, the deceased did not, in fact, inflict serious bodily harm upon the prisoner; this, when according to the evidence, the deceased without adequate provocation, while the weak one-armed man was walking away from him, had felled him to the ground by a powerful blow on the back of his head.

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“14. Because his honor erred in charging the jury-as follows: ‘I believe if a man has been murdered and it be proved, and I do anything to let him escape, some of the blood of the murder rests on me. That is the way I feel about it. I do not intend to ever have anything of that sort to reflect upon in my after life. It would be a sad thought to me if I could believe that I had ever borne heavily upon an injured man who was tried for his life, or ever permitted room for him to escape if his fault was proved,’ whereas it is respectfully submitted that if his honor deemed it necessary to define the duty of the court, it should have been done in accordance with the provisions of the constitution — disclaiming all responsibility except such as may be involved in declaring the law, and impartially stating the evidence in such manner and in such terms as to leave to the jury the exclusive determination of the facts, without reference to the opinion of the court as to the guilt of the prisoner ; and whereas it is further respectfully submitted, the whole tenor, substance, manner, and effect of the charge, contrary to the requirements of the constitution in this regard, did constrain the jury to adopt as their conclusion the opinion of the court, emphasized by argument on the facts, that the prisoner was ‘guilty of something.’ ”

Section 26 of article IY. of the Constitution declares that “judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law.” As has been stated in several of our cases, there is no more difficult duty imposed upon this court than that of fixing, under this provision, the exact line which bounds the province of the trial judge in respect to matters of fact. This difficulty arises largely from the vague and undefined nature of the subject, and the infinite combinations of circumstances which .are developed in the administration of the law. The judge undoubtedly has the right to state the testimony and in its proper order, and it is easy to see how a conscientious officer, intent upon the proper administration of the law, and the punishment of those believed to be guilty, may unconsciously transcend the very shadowy outlines of his constitutional domain. But when the question is made, we have no option but to discharge our duty as best we may. So far as a rule upon the subject can be absolutely fixed, we think it well established in this State, “that the judge must carefully avoid expressing an opinion on the facts, leaving it to the jury to draw their own conclusions entirely unbiassed by any impression which the testimony may make upon the mind of the judge. * * * He must not in any way indicate his opinion of the facts to the jury,” &c. See Redding v. Railroad Company, 5 S. C., 69; State v. White, 15 Id., 381; Benedict v. Rose, 16 Id., 629; Sharp v. Kinsman, 18 Id., 108; State v. Summers, 19 Id., 91; 21 Id., 595; and 24 Id., 59.

Taking this as our guide, and reading the whole of the charge, not in a critical spirit but with all proper allowances, we cannot resist the conclusion that the judge did charge the jury upon matters of fact. Without referring specially to other parts of the charge objected to, it seems to us obvious that the judge did not believe the testimony of the defendant, and that he strongly indicated that impression to the jury, by what, in effect, was an argument terse, compact, and forcible. He called attention to the fact that he was swearing for his own life, and asked the question, “Whether there was one man in a thousand who, under those circumstances, could resist the inclination to sway from the truth?” He stated that his testimony was not only contradicted by the w'hole array of the other witnesses and the circumstances of the case, but plainly indicated that it was inherently incredible — saying, “he himself, as you see, is a one-armed man, and he says he is otherwise weakly from ba.d health; he is not a large man. Now, gentlemen, you are bound to ask precisely this question : If that strong, powerful man knocked him down senseless on the ground and was following it up in such a manner as to endanger his life, or to inflict upon him serious bodily harm, could that possibly have happened without serious bodily harm having been inflicted on him?” The question is not whether the judge’s impression of the facts was in itself right or wrong, but whether it was error to indicate that impression to the jury.

The research of the counsel for the defendant has enabled him to bring to our attention quite a number of cases in other States having similar latvs to our constitutional provision, which show that the inhibition against the judge charging on the facts is generally enforced with strictness. It is believed that most of the States in the Union have some regulation upon the subject. Several of them have constitutional provisions identical with our own. In Whitley v. State (38 Ga.), it was held “that the charge in a criminal case should explain the law, but should contain no argument upon the facts. The tribunal of inference is the jury, and the jury alone. Not only are they to judge what facts are established, but they are to draw their own conclusions from them, uninfluenced by any impressions made by the testimony upon the mind of the judge. His convictions should not be declared or intimated.” See also Brewster v. Georgia, 63 Ga., 639.

In the State v. Vasquez (16 Nev., 42), the trial judge had charged “that in all cases jurors should receive such testimony (of the accused) with great caution ; for when one is being tried for a capital offence, the temptation to pervert or distort the facts in favor of himself is very great.” Held, “that upon principle as well as upon authority, the last portion of the instruction quoted cannot be upheld. Courts cannot so charge juries as to impress upon their minds that any witness has testified falsely. Jurors may be informed as to the matters to be considered in determining the credibility of witnesses, but they cannot be instructed directly or indirectly, that any witness has perverted or distorted the facts. And when a defendant in a criminal case makes himself a witness, he has the right to have his testimony received and considered according to the rules adopted in relation to other witnesses.” In State v. Ah Tong (7 Nev., 148), it was held that “the judge should intimate no opinion upon the facts. If he cannot do so directly, he cannot indirectly; if not explicitly, he cannot by innuendo; and the effect of such an opinion cannot be obviated by announcing in distinct terms the jury’s independence of him in all matters of fact. One of the objects stated to be guarded against, is the well known proneness of juries to seek to ascertain the opinion of the judge, and to shift their responsibilities from themselves to the court. * * * Any instruction from which inferences plainly prejudicial to the defendant can be drawn, is erroneous.”

In Ivey v. Hodges, 4 Hump., 154 (Tennessee), the court say: “This provision arose out of the jealousy rvith which our ancestors always looked upon any attempt on the part of courts to interfere with the peculiar province of the jury — the right to determine what facts are proved in a case — and to put a stop to the practice of ‘summing up,’ as it was and is yet practised in the courts of Great Britain, which consists in telling the jury, not what was deposed to, but what was proved. This the framers of our constitution considered a dangerous infraction of the trial by jury, and have prohibited it by express terms. ‘Judges shall not charge with respect to matters of fact,’ that is, shall not state to the jury what facts are proved ; to do so is error, for which a case must always be reversed. But not being disposed to withhold from the jury any proper aid which the judges may be enabled to render them in their investigation, they have provided that they may ‘state the testimony’ — that is, may, for the purpose of refreshing the memory of the jury, inform them what facts the different witnesses deposed to (and arrange them in order), leaving them to judge of the truth thereof and draw their deductions therefrom,” &c. See State v. Rogers, 93 N. C., 523; Ross v. State, 29 Texas, 499; Commonwealth v. Barry, 9 Allen (Mass.), 276; People v. Williams, 17 Cal., 142; &c.

The judgment of this court is, that the judgment of the Circuit Court be reversed without prejudice, and the case remanded to the Circuit for a new trial.