State v. Messervey , 105 S.C. 254 ( 1916 )

July 4, 1916. The opinion of the Court, reciting the foregoing statement of facts, was delivered by 1. Appellant complains: "The Court had no jurisdiction to try defendant on the indictment found by the grand jury of Charleston county."

The statute invoked is as follows:

"When any person shall be struck, wounded, poisoned, or otherwise injured in one county, and dies thereof in another, any inquisition or indictment thereon found by jurors of either county shall be as good and effectual in law as if the stroke, wound, poisoning or other injury had been committed and done in the county where the party shall die. And the person guilty of such striking, wounding, poisoning or other injury and every accessory thereto, either before or after the fact, shall be tried in the county where such indictment shall be found, and if convicted, punished in the same mode, manner and form as if the deceased had suffered such striking, wounding, poisoning or other injury and death in the county where such indictment shall be found." Cr. Code 1902, sec. 119.

a. It will be observed that the statute says: "Any inquisition or indictment found thereon by jurors of either county, shall be good and effectual in law."

The record shows that Mr. Altman died in Charleston and the Charleston jury found the indictment. The Court must, therefore, declare the indictment good.

b. The appellant claims that the defendant has the right to know which Court had jurisdiction, and that no bill of indictment could be sustained in Charleston until there had, at least, been a nol. pros. entered on the bill in Colleton. The appellant has cited no authority for this proposition, and this Court knows no authority that makes such holding. If the defendant wanted protection from an indictment in Colleton, he now has it, in former jeopardy. Nol. pros. does not bar another indictment. SeeState v. Haskett, 21 S.C.L. (3 Hill) 95.

c. Again, appellant says: "The change of county lines does not change the jurisdiction of the Court."

That question is academic here. The question is not as to the jurisdiction of the Court in Colleton, but as to the jurisdiction of the Court in Charleston, and the deceased died in Charleston.

2. Again appellant says: "The Court erred in allowing testimony of P.M. Buckner as to alleged statements of defendant with reference to Mr. Fishburne."

Mr. Fishburne's son was crying at the casket of his father The appellant, according to the witness, said: "It is not a damn bit of use crying over these old men; they did not have much time to live."

It was for the jury to say whether the appellant was speaking of Mr. Altman as well as Mr. Fishburne (he had killed both of these old men), and was competent on the question of malice.

3. The next complaint is as to defendant's twelfth request to charge: "I charge you that an officer who, on his own responsibility, makes an arrest without a warrant is generally called upon to show that an offense was committed which justifies him in arresting the offender. To establish the crime he has the burden of proving, beyond a reasonable doubt, all the elements which go to make up the offense. And the mere preponderance of evidence is never sufficient to convict one of crime, but a greater degree of proof is necessary — proof that will not allow a reasonable doubt of the prisoner's guilt to remain in the mind of the jury.

"The Court: I cannot charge you that. He has to prove beyond a reasonable doubt that a crime has been committed in the sense that that proof must show that the party was violating the law at the time; of course, he would have to show that violation beyond a reasonable doubt in order to justify the arrest. I charge you that as modified."

His Honor went far enough. This proposition cannot be sustained.

4. The Court erred in refusing to charge that it was necessary for a man to qualify before he could act as a constable. The case of State v. Messervey, 86 S.C. 503,68 S.E. 766 (same parties), decided exactly the other way.

5. The appellant's fifth and seventh grounds of complaint are based upon the idea that Mr. Fishburne was not an officer, but merely a private citizen making an arrest without a warrant. It is a matter of law in this case that Mr. Fishburne was an officer. His title to his office was attacked collaterally (?) and on a question of law, and that has been decided by this Court in State v. Messervey, supra.

6. Because his Honor refused to charge: "The plea of self-defense is good in law where made out to the satisfaction of the jury, and if you find that the defendant fired the shot to save himself from death or serious bodily harm, then you must find him not guilty. The Court: That is already covered by my charge, and is refused."

This leaves out that essential requisite that the defendant must be without fault in bringing on the difficulty.

All the exceptions are overruled, and the judgment is affirmed.

MESSRS. JUSTICES HYDRICK and GAGE concur in the opinion of the Court.