State v. Portee

December 29, 1922. The opinion of the Court was delivered by The following statement appears in the record:

"The defendant while operating an automobile in the street or highway, near the town of New Brookland, Lexington County, on the 13th day of ____, 1920, struck and killed one J.C. Turner."

The deceased in crossing the highway from the west to the east side, and while in the street, a motorcycle passed just in front of him, and the automobile operated by the defendant was some 40 or 50 feet in rear of the motorcycle, and on the extreme right of the highway, and when defendant's automobile was near deceased, instead of his proceeding on across the street or standing still, he jumped backwards in front of defendant's automobile, and was struck and so injured that he died in a short time thereafter. At the January term of the Court of General Sessions for Lexington County, the defendant was indicted for murder. When the case was called for trial, the defendant moved the Court to quash the indictment, on the ground that three or more distinct offenses were charged in the one and only count contained in the indictment, and that two or more offenses should not be united in the same count, and that the indictment was bad on account of duplicity and multifariousness.

The motion having been overruled, the defendant entered a plea of not guilty, and a jury was empaneled and after the taking of the testimony, the argument of counsel, and the charge of the Court, the defendant was found guilty of manslaughter, whereupon he moved the Court to set aside the verdict for a new trial, on the several grounds set out in the record. The motion for a new trial having been overruled, the Court sentenced the defendant to three years' imprisonment, from which judgment he appeals and asks for a reversal of the same upon the exceptions contained in "this record."

A copy of the indictment and of the entire charge will be reported.

The exceptions will be considered in regular order.

The first exception is as follows:

(1) "Because the indictment shows in the one and only count contained therein that the defendant is charged with three or more distinct offenses, which could not be united in one count, and that his Honor erred as a matter of law in not so holding and quashing the indictment."

Section 87, Criminal Code of 1912, is as follows:

"Every indictment for murder shall be deemed and adjudged sufficient and good in law, which in addition to setting forth the time and place, together with a plain statement, divested of all useless phraseology of the manner in which the death of deceased was caused, charges that the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased."

The indictment herein was a substantial compliance with the said requirements, and this exception is overruled.

The second exception is as follows:

(2) "Because the verdict is contrary to the weight of the testimony, in that it plainly shows that the deceased, J.C. Turner, who was crossing the street or highway, jumped backward in front of the automobile and was struck, and that his death was caused by his own negligence without which it would not have occurred."

The testimony was susceptible of more than one inference, and therefore was properly submitted to the jury. This exception is, likewise, overruled.

The third exception is as follows:

(3) "Because there is no reasonable inference that could be drawn from all of the testimony that would support a verdict of felonious killing, no reasonable inference can be drawn that will support that kind of a verdict, when the testimony plainly shows that the defendant who was operating the automobile was on the extreme right hand side of the street or highway, and the deceased, having been in or near the center of the street, jumped backward in front of the automobile and was struck by it, and his death was caused by his negligence in jumping backward in front of the machine, and his Honor erred as a matter of law in not so holding and granting the defendant a new trial."

What has already been said shows that this exception cannot be sustained.

The fourth exception is as follows:

(4) "Because the Court did not charge the jury the law applicable to the facts of this case as he is required to do, in that he failed to charge the jury that if the defendant was negligent in operating the automobile, running it at a rate of speed forbidden by law, the jury should acquit him unless the State prove beyond a reasonable doubt that the negligence of the defendant was the proximate cause of the death of the deceased. That the State was bound to satisfy the jury beyond a reasonable doubt that the death of the deceased, Turner, was brought about by the negligence of the defendant, and that his negligence was the proximate cause of Turner's death."

The failure of his Honor, the presiding Judge, to charge in the manner stated in the exception, cannot be assigned as error, for the reason that he was not so requested. State v.Adams, 68 S.C. 421; 47 S.E., 676. If it was deemed necessary numerous other decisions could be cited.

Furthermore, his Honor, the Circuit Judge, charged this proposition:

"Now, gentlemen, there is another phase of the law, that I want to repeat to you. The burden is upon the State to show that this was a felonious killing, that it is not an accidental killing; that is, a killing through misadventure, through no fault of the party who did the killing. The burden is upon the State of South Carolina; it must show that it was a felonious killing beyond a reasonable doubt."

The question of proximate cause is applicable to civil actions, while in criminal cases the testimony must establish the guilt of the prisoner beyond a reasonable doubt. This exception is overruled.

The fifth exception is as follows:

(5) "Because the Court erred in charging the jury: ``Implied malice is such as you have a right to infer from the use of a deadly weapon, as in this case, you have a right to infer malice from the reckless handling of a dangerous instrumentality until the circumstances show that it was not of that character. The error being that it was a charge on the facts and placed the burden on the defendant to show that it was not a dangerous instrumentality under the circumstances of this case, whether reckless or negligent be considered, whereas the burden was on the State that it was a dangerous instrument and was also a charge on the facts."

His Honor, the Circuit Judge, simply meant to charge the jury that it was for them to draw the inference from the testimony, as to implied malice, in the case then under consideration. The charge, in its entirety, shows beyond question that such was his intention. This exception cannot be sustained.

The sixth exception is as follows:

(6) "The Court erred in charging the jury the law of manslaughter in cases of personal encounter, as the charge had no application to the case at bar, was foreign to the issue being tried, and the only effect it could have had would be to confuse the minds of the jury."

As the jury had the right under the testimony to find a verdict of manslaughter against the defendant, it cannot be successfully contended that it was error to mention the different kinds of manslaughter, by way of illustration. The exception is overruled.

The seventh exception is as follows:

(7) "The Court erred in charging the jury: ``If you are using a dangerous instrumentality negligently, and death results to some one, that would be a foundation for manslaughter.' The error being that the charge entirely disregarded the doctrine of proximate cause, which was of vital importance in this case, and which he should have told the jury."

The only error assigned is that the charge disregarded the doctrine of proximate cause. We have already shown that such doctrine has no application to criminal cases; and that his Honor, the presiding Judge, charged the jury that they could not render a verdict of guilty, unless they were satisfied of the defendant's guilt beyond a reasonable doubt. This exception is overruled.

The eighth exception is as follows:

(8) "The Court erred in repeating the above charge in the following language: ``When one disregards those laws as laid down by our Legislature, then he is acting negligently, and if it is a dangerous instrumentality and death results to some one it may be a foundation for manslaughter.' The error being that the charge entirely disregarded the doctrine of proximate cause, which was the vital question at issue in this case, upon which point the Court should have given the jury the law of proximate cause."

This exception is overruled for reasons already stated.

The ninth exception is as follows:

(9) "The Court erred in charging the jury: ``Now, a familiar example given in the books is, where a man rides a horse at full speed upon a crowded thoroughfare and runs over some man and kills him, the law says he is supposed to intend the natural consequences of his wanton conduct, and although he may not know the man whom he kills, may not have any feelings towards him at all, his reckless, high-handed conduct has supplied it, or you would infer it from his reckless, high-handed conduct that it was done maliciously, and the law characterizes it as murder.' The error being that the charge so given was wholly inapplicable to the facts of this case and could have had no other effect than to becloud the minds of the jury and made them to believe that if a man was running an automobile at a rate of speed greater than that allowed by law, and death resulted to any one, that he would be guilty of a crime the person so killed was guilty of negligence, and his negligence was the proximate cause of his death and with which negligence on his part he would not have killed."

This part of the charge was merely illustrative, and it cannot successfully be contended that it was prejudicial to the rights of the appellant, especially when the charge is considered in its entirety. The exception is overruled.

The tenth exception is as follows:

(10) "His Honor erred in charging the jury: ``There is another phase that I want to call specifically to your attention. I have explained the difference between murder and manslaughter, and here is the distinction the law draws, as I understand it: If you are negligent in the handling of a dangerous instrumentality — now, mark you, I said negligent, not handling it in a reckless disregard of human life, in a high-handed way and in showing a mind that is fatally bent upon mischief; but if you are using a dangerous instrumentality negligently, and death results to some one, that would be a foundation for manslaughter. That is the difference, and I want you to mark the difference between the handling of a dangerous instrumentality in such a reckless way as to show an utter disregard for human life, which would be a foundation for murder, and the handling of a dangerous instrumentality in a dangerous way. If one is killed under those circumstances, not because he is handling it in a high-handed way showing that he is utterly disregardful of human life, but if he is using it in a negligent way, the law says that would be manslaughter.' The error being that in thus charging the law his Honor did not tell the jury the law of proximate cause, and the charge thus given to the jury was calculated to and did impress them with the idea that his Honor believed the defendant was either guilty of murder or manslaughter. If the defendant was negligent in handling the automobile, no matter whether death of the deceased was caused by his own negligence as an approximate cause of it."

The only ground of error assigned relates to the doctrine of proximate cause, which has no application to criminal cases. The rule of the criminal law, in accident cases resulting in death, is that the State must prove beyond a reasonable doubt that the negligence of the accused caused the death of the deceased — a doctrine entirely distinct from that of proximate cause. This exception is overruled.

The eleventh exception is as follows:

(11) "Because the juror, Curtis Derrick, had expressed himself adverse to the defendant before he was sworn as a juror in this case, and was therefore incompetent as a juror to sit upon the trial of this case, and his Honor erred as a matter of law in not so holding and setting aside the verdict and awarding a new trial to the defendant."

The conduct of the juror was not discovered until the verdict had been rendered. The appellant's attorneys, however, have failed to satisfy this Court that his Honor, the Circuit Judge, erroneously exercised his discretion in refusing to set aside the verdict, on the ground mentioned in the exception.

The twelfth exception is as follows:

(12) "The Court erred in charging the jury: ``Implied malice is such that you have the right to infer from the use of a deadly weapon, or, as in this case, you have a right to infer from the reckless handling of a dangerous instrumentality until the circumstances show that it was not of that character.' The error being: First, that it was a charge on the facts in violation of the constitutional inhibition against charging on facts; and, second, that it was in violation of the well-established rule that malice may not be inferred from the mere fact of the killing when all of the testimony was brought out on the trial of the cause, but the State who asserts malice must prove it beyond a reasonable doubt."

What was said in considering the other exceptions, especially the fifth, shows that this exception cannot be sustained.

Appeal dismissed.