State v. Francis

The defendants Paul Francis, Frank Francis, Ethel Francis, and Abraham Gadsden, with two others, Sam Simmons and Robert Adams, all colored, were indicted in the Court of General Sessions for Beaufort County, charged with the murder of a white man, E.L. Langford, a rural police officer of Beaufort Court, on June 6, 1927, at a country precinct in said county.

The trial was begun on June 30th, 24 days after the alleged homicide, at Beaufort, before his Honor, Judge Johnson, and a jury, and lasted three days.

The verdict was:

Paul Francis: Guilty of murder without recommendation to mercy.

Frank Francis: The same.

Abraham Gadsden: The same.

Ethel Francis (wife of Frank Francis): Guilty of murderwith recommendation to mercy.

Robert Adams: The same.

Sam Simmons: Guilty of manslaughter.

Motions for new trial were overruled and sentences imposed according to law.

The defendants Sam Simmons and Robert Adams have not appealed from the judgment and sentences of the Court; the other four, Paul Francis, Frank Francis, Ethel Francis, and Abraham Gadsden, have.

The evidence tended to establish the following facts, a condensed statement of which appears to be necessary for an apprehension of the legal issues involved in the appeal:

The homicide occurred at a locality known as Mitchell's Store, about six miles from the City of Beaufort; there were gathered there on June 6, 1927, some 200 or 300 colored people; a game of baseball was in progress upon grounds on the opposite side of the highway from the store, and several hundred yards away; the storeroom had been converted temporarily into a hall where refreshments were being served by the colored women; the storeroom had a porch at the front, the edge of which was quite near the highway.

It appears that the defendants Frank Francis, Ethel Francis, and Robert Adams lived in Savannah; Paul Francis, father of Frank, Abraham Gadsden, a brother-in-law of Frank, and Sam Simmons, lived in Beaufort County, not far from the store.

On the morning of the homicide, the Francis defendants other than Paul Francis, and Adams, in different automobiles, left Savannah with others for the gathering, and reached it some time after noon, parking their cars near the store and highway; the car of Frank Francis being about seven feet from the porch of the store.

While the ball game was in progress, Frank Francis left the field and returned to the hall. In the meantime the deceased Langford and one McDaniel, a game warden, arrived upon the scene and parked their car near the hall. They began to search the car of Frank Francis, inquiring whose car it was. Frank Francis came out of the hall, on the porch, and inquired what was the trouble. Langford asked him, "Is this your car?" Francis said that it was. Langford said: "We want you. You are under arrest. Get in the car." Francis asked: "What you want me for, Chief, I ain't done nothing." Whereupon Langford again commanded him to get in the car, and again Francis asked him what it was for. Upon being told that he was wanted for driving recklessly, Francis in a peaceful manner was explaining to the officer that he had not done anything to cause his arrest.

At this point, McDaniel broke into the conference and said, "He had already told you what he wanted you for, and God damn it, get in that car." Whereupon Langford drew his pistol and struck Francis over the left eye, stunning him. Upon the display of the officer's pistol, and being struck with it, he grappled with the officer. At this moment, McDaniel fired at close range, point blank, at Francis with a 44 caliber derringer, breaking the thigh bone at the hip, whereupon Francis and Langford fell to the ground, and four or five negroes piled upon and attacked him.

The autopsy upon the body of Langford showed that he had been shot twice in the back, stabbed twice in the breast, shot once in the hand and once in the arm, had been struck above the temple with a blunt instrument which crushed his skull "like an egg shell," had bruises from blows upon his person, and his arm had been bitten in several places.

The testimony is confused and contradictory as to whether the wounds, other than those in his hand and arm, were inflicted while he was on the ground in the initial stage of the melee. It appears that he arose, walked to the edge of the porch, and sat down.

There was testimony to the effect that, while he and Frank Francis were struggling, Paul Francis ran up with a pistol and shot him twice in the back.

There was testimony also that in the struggle, Ethel Francis, his wife, handed a pistol to Frank Francis, and that he, standing face to face with Langford, shot him twice, although the autopsy disclosed no wounds in the front of his body.

There was testimony also to the effect that, while he was sitting at the edge of the porch, Abraham Gadsden and Joe Williams each fired a full round into his back, and that he "slumped" off the porch onto ground.

There is nothing to show when or by whom the crushing blow upon his temple was delivered. From the testimony of the doctor that either the wounds in the back or the blow on the head were fatal, it appears most probable that they were inflicted while he was seated on the edge of the porch; for with such fatal wounds he could hardly have moved from the original point of the struggle to the porch.

Paul Francis, father of Frank, admitted that when he saw his son clubbed over the head with a pistol by Langford, and shot by McDaniel, he fired twice at Langford; one bullet entered his hand and arm and the other the leg of his son Frank, about an inch from the point of exit of the bullet fired by McDaniel.

After Langford had arisen and seated himself upon the edge of the porch, Frank Francis, still upon the ground with a shattered thigh, called for help in getting into his car and being carried to a doctor.

Langford lived only a few minutes after the melee, dying upon the ground where he had fallen from the porch.

It is extremely important to observe that the melee consisted of two distinct and separate stages: The initial struggle between Langford and Frank Francis followed by the conduct of the other participants at that point, and the attack upon Langford after he had sat upon the edge of the porch. Whatever excuse Frank Francis, or Paul Francis, or Ethel Francis may have had for the counter attack in defense of Frank Francis, who was being clubbed by one and shot by the other of the officers, that stage of the melee had passed when Langford sat upon the porch in a wounded condition; he was not then making an attack or attempting an unlawful arrest, and his assailants at that point had no possible excuse for their attack. It is not contended that either Frank, who was upon the ground, or his father, Paul, or his wife, Ethel, had any part in that second stage.

After Langford had "slumped" from the porch to the ground, under the attack with pistols of possibly Gadsden and Williams (a fugitive, not on trial) and of the wielder of supposedly a baseball bat, not one of the 200 negroes remained except the defendant Sam Simmons, who is not appealing, and another not implicated. Frank Francis was placed in the automobile, the negro, Adams, driving, and after moving off from the hall they picked up Paul, and the party were on the way to Savannah, when they were arrested at Ridgeland. They were indicted and brought to trial on the 30th day of June at Beaufort.

The scene of the trial: The courthouse grounds and courtroom were under control of the State militia; no person was permitted to enter the Court without being searched; the prisoners were brought from jail to the courtroom under military guard marching behind, in front, and on both sides; they were escorted under such guard throughout the trial; were under military guard in the court room, and during the noon and night recesses were escorted by the military through the grounds and back to the jail, which was kept under military guard during the whole trial, night and day.

Frank Francis had received the shot which broke his thigh on June 6th. He had been bedridden, flat on his back, with his leg and side in a bulky mechanical contrivance. He was confined in jail on a cot and brought to and from the courtroom on a truck, lifted from the truck and carried by men up the stairs and into the courtroom, and back to the jail in the same manner.

The trial lasted for three days, being concluded about midnight of the third day.

The defendants were not charged with conspiracy to take the life of the deceased. The occurrence appears to have been one of those sudden tragic outbursts which come without warning and without possibility of preconcerted action.

The defense interposed in behalf of Frank Francis was that he was an innocent victim of an unlawful search and unlawful arrest, and of the conduct of McDaniel, who began the catastrophe with a shot from his derringer; that Frank had never, at any time, had a weapon and could not have used one upon the deceased if he had had one; that even if he had shot, cut, or clubbed Langford, he would have been doing so under the fears of a reasonable man in defending his person and life from the assault of two white men, both armed with deadly weapons.

The defense of Paul Francis was that if he did actually shoot at Langford and McDaniel, he did so in defense of his son after having seen his son struck with a revolver and shot down with a pistol, and had seen him fall to the ground in the embrace of Officer Langford. The defense of Ethel Francis was that she was an innocent victim of time and place, had nothing to do with the matter, had used no weapon of any kind, but, even if she had, she would have been acting in the defense of her husband's life and person.

The defense of Abraham Gadsden was that he had used no weapon at all, but, even if he had, it would have been in defense of the life and person of his brother-in-law, Frank Francis.

Robert Adams and Sam Simmons were entirely disconnected by family ties or interest with the Francis group and had nothing to do with them. They were mere volunteers without connection of any kind with the Francis family.

When the case was called for trial, the defendants Frank Francis, Paul Francis, and Ethel Francis, the wife of Frank, moved for a severance as between them and the other defendants, Abraham Gadsden, Sam Simmons, and Robert Adams, upon the grounds that their defense was self-defense, different from that interposed by the other defendants, and that it was inevitable that certain evidence, admissible against the other defendants but inadmissible against them, would be offered, and that notwithstanding the admonition of the Court that it could not be used against them, the effect was unavoidable to seriously prejudice them.

The defendant Frank Francis moved for a continuance of the case, as against him, upon the ground that his physical condition seriously impaired his ability, mentally and physically, to properly present his defense.

All of the defendants made a motion for a change of venue upon the ground of local excitement and prejudice against them under the circumstances.

The motions were all refused by the presiding Judge.

At the close of the evidence the defendants moved for directed verdicts in their favor, upon the ground that the evidence failed to connect them in a guilty manner with the offense charged. This was also refused.

The high points in this deplorable tragedy and trial, concededly, are these:

(a) The deceased a rural policeman who should have known better, began the trouble by attempting to search the automobile of the defendant Frank Francis without a search warrant, and to arrest him without a warrant, and without having been an eyewitness to his alleged violation of law, a misdemeanor.

(b) Upon his insistence that the defendant Frank Francis enter the automobile, obviously for the purpose of carrying him to a Magistrate, and the reluctance and protest of Frank, the deceased and his companion, McDaniel, a game warden, angrily ordered him into the car; the deceased drew his pistol and struck the defendant Frank over the head a severe blow, and McDaniel placed a .44 derringer against the defendant's thigh, and fired, shattering the bone.

(c) The defendant Frank then grappled with the deceased, and they both went to the ground; at this point the melee became general; the testimony is confused and conflicting.

(d) In the melee Paul Francis, the father of Frank, seeing his son attacked by two men, each with a pistol, one of which had been used to strike Frank and the other to shoot him, ran up and fired twice; one ball entered the groin of his son, and the other the hand and arm of the deceased.

(e) The defendant Frank was on the ground with a broken leg and a shot in the groin, calling to be helped into the car and carried to a doctor.

(f) The deceased walked a few steps and sat down upon the porch of the store or lodge in which refreshments were being sold; the autopsy showed that he had been shot twice in the back, stabbed twice in the breast, and had been struck over the head with some blunt instrument, supposedly a baseball bat, and his skull crushed "like an egg shell"; wounds which must have been inflicted after he sat down upon the edge of the porch, as he could hardly have moved after they were inflicted.

(g) The evidence tends to show that while thus seated on the porch, one of the defendants, Abraham Gadsden, and another, Joe Williams, now a fugitive, emptied their guns into his body, and some one struck him with a baseball bat.

(h) The homicide occurred on June 6th, and on June 30th, 24 days later, the trial began. In the meantime the defendants, other than Frank Francis, were removed to the penitentiary for safety; Frank was lodged in jail, as he could not be transported in his wounded condition; some kind of a mechanical contrivance, of a nature not explained, was applied to his broken leg. When the trial was to begin, Frank was lifted into a truck and carried to the Courthouse. He was placed upon a cot in the courtroom, where he lay upon his back for three days of the trial in which his life was at stake.

(i) Doubtless due to the apprehension of a lynching, a military guard surrounded the jail day and night, accompanied the defendants from the jail to the courtroom and back, and were on guard in the courtroom during the trial.

The points in the case which will be discussed are:

1. The exercise of a sound discretion would have demanded and justified a severance of the defendants as between Frank Francis, Paul Francis, and Ethel Francis, on the one part, and the defendants Abraham Gadsden, Sam Simmons, and Robert Adams, on the other.

2. The exercise of a sound discretion would have demanded and justified a continuance of the case as against the defendant Frank Francis, on account of his physical condition.

3. Conceding the truth of the testimony most strongly against the defendant Frank Francis, as evidence it was legally insufficient to sustain a verdict of guilty of murder.

4. Conceding the truth of the testimony most strongly against the defendant Paul Francis, as evidence it was legally insufficient to sustain a verdict of guilty of murder.

5. Conceding the truth of the testimony most strongly against the defendant Ethel Francis, as evidence it was legally insufficient to sustain a verdict of guilty of murder.

6. The case as against the defendant Abraham Gadsden.

7. The charge of the presiding Judge.

I. The exercise of a sound discretion would have demandedand justified a severance of the defendants, as betweenFrank Francis, Paul Francis, and Ethel Francis, onthe one part, and the defendants Abraham Gadsden, SamSimmons, and Robert Adams, on the other.

It has been held in numberless cases that a motion for severance "is addressed to the sound discretion of the trial Judge," and that his decision will not be disturbed except upon a clear showing of an abuse of that discretion. By the very terms of the announced principle, the decision is not final and conclusive, pretermitting a review of it; it may be reviewed and will be reversed if the appellate Court should conclude that there has been an abuse of that discretion.

As former Circuit Judge Benet, acting Associate Justice in the case of Norris v. Clinkscales, 47 S.C. 488,25 S.E., 797, 801, observes: "And the appeal will lie, not because of any so-called `abuse of discretion,' — a phrase unhappily framed, because implying a bad motive or wrong purpose — but because his ruling may appear to have been made on grounds and for reasons clearly untenable. This principle is recognized in Trumbo v. Finley, 18 S.C. 315, where Mr. Justice McGowan says that the exercise of a Judge's discretion, `as a rule, will not be disturbed unless it deprives a party of substantial right, which he can show he is entitled to under the law.'"

Which means that this Court should review circumstances and grounds of the motion, and if it should come to the clear conclusion that the motion should, in the interest of justice and fairness, have been granted, the refusal will constitute an "abuse of discretion," a "phrase unhappily framed," without the slightest imputation of a bad motive or wrong purpose on the part of the Circuit Judge, and with no other criticism than that which follows any other error of law. The softer from of expressing the rule would have been that, unless it should appear otherwise, it will be presumed on appeal that the discretion was soundly exercised.

"This Court adopts without dissent as the correct rule on this subject, that where two or more are charged in the same indictment with a capital offence, they have not a right by law to be tried separately, but such separate trial is a matter of sound discretion to be exercised with all due regard and tenderness to prisoners, according to the known humanity of our criminal jurisprudence." State v. Wise, 7 Rich., 412.

This clearly shows that the exercise of the power by the trial Court is not absolute; it does not justify the appellate Court in relying upon the decision of the trial Judge without an inquiry into the circumstances of the case and the grounds of the motion, as if the exercise of his discretion had foreclosed all inquiry into its justness.

As the Georgia Court said in Caldwell v. State, 34 Ga. 10: "We do not say it is an unbridled, uncontrollable discretion; but where severance is demanded as a right, unsupported by cause shown, and refused, we are wholly indisposed to interfere with the exercise of the discretion."

In the later case of Horne v. State, 37 Ga. 80, 93, 92 Am. Dec., 49, the Georgia Court held: "But as a general rule we hold that in all cases where parties are indicted for an offense which does not require the joint act of two or more to constitute the offense, the defendants upon application have a right to be tried separately; the rule is otherwise in those cases which require the concurrence of two or more in their commission; in cases of this class the matter is subject to the legal discretion of the Court before whom the trial takes place."

This Court has not gone so far; but has held that in both classes of cases, the matter is one for exercise of the sound discretion of the trial Judge. That issue is necessarily open upon a consideration of the circumstances and grounds.

In Isbell v. U.S. (C.C.A.), 26 F.2d 24, 25, the Court, while announcing the general rule that motions for severance rest in the sound discretion of the trial Judge, said: "Nothing appears in the record which would indicate that the trial Court abused this discretion in denying the motion,or that the facts in this case present a situation from whichit might be apparent that either defendant could not or didnot secure a fair and impartial trial by being tried jointlywith his co-defendant."

So in Raarup v. U.S. (C.C.A.), 23 F.2d 547, 548, the Court held that the motion was properly refused, in that "the record does not show that Raarup would be or was prejudiced by a denial of his motion for a severance."

Discretion of Court relative to granting separate trial is not arbitrary. People v. Sweetin, 325 Ill., 245,156 N.E., 354, 357.

"While granting of a separate trial of defendants jointly indicted rests in discretion of trial Court, Court must exercise a sound discretion in overruling such a motion." Peoplev. Rupert, 316 Ill., 38, 146 N.E., 456.

"Where from the nature of the case it appears that a joint trial will probably be prejudicial to the rights of one or more of the parties, a separate trial should be granted when properly requested." State v. Brauneis, 84 Conn., 222,79 A., 70, 72.

"The controlling question is whether it appears that a joint trial will probably result in substantial injustice." Statev. Castelli, 92 Conn., 58, 101 A., 476, 478.

"While, whether a separate trial shall be allowed parties jointly indicted, is within the discretion of the Court, where, from the nature of the case, it appears that a joint trial will probably be prejudicial to the rights of one or more of the parties, a separate trial should be granted when properly requested." State v. Brauneis, 84 Conn., 222, 79 A., 70.

There are several circumstances in this case which demonstrate the inevitable prejudice to the moving defendants of a joint trial:

1. A white man, an officer of the law, had been killed at a negro gathering under circumstances of great brutality.

2. The trial was being had swift upon the heels of the event, when public sentiment was so aroused that, in the opinion of the Circuit Judge, it was necessary that the military be called out by the Governor to protect the defendants from an outburst of resentment; it was evitable that upon the trial this resentment would be visited against all who were in any manner connected with the melee in which the officer was killed, regardless of any justification or excuse which they might offer.

3. It does not appear to have been realized that the melee consisted of two separate and distinct stages; the initial encounter between Frank Francis and the officers, and the assassination of Langford after he had abandoned the conflict with Frank Francis and had sat upon the edge of the porch wounded and bloody. These stages were as separate and distinct as if Langford had been waylaid and assassinated on his way home. However excusable the Francis defendants may have been in the initial stage of the melee, it was practically impossible to insulate them from the effect of the harrowing recital of a subsequent cold-blooded assassination with which they were not at all connected. There was no warning by the presiding Judge against this inevitable effect.

The failure of the presiding Judge to appreciate the fact that there were two distinct and separate stages of the melee, and the prejudice to the moving defendants of linking them up with the events of the second stage, is developed clearly in the following extract from the Judge's charge: "That if after the officer has with force attempted to effect an illegal arrest he desists from his purpose, if the officer thereafter desists from his purpose to make the unlawful arrest, why then the person (manifestly referring to Frank Francis, the person sought to be arrested), no longer has the right to resist, there is nothing to resist, and it makes no difference what caused the officer to desist. If the officer actually attempting to effect or attempting to make the illegal arrest ceases in his efforts from any cause whatsoever, then the person soughtto be arrested unlawfully no longer has the right to resist, and if one thereafter should slay the officer intentionally and with malice, that person would be guilty of murder."

There was not a particle of evidence in the case that Frank Francis, "the person sought to be arrested," lying on the ground with a shattered thigh and a wound in his groin, and calling for help to be put into his car, made the slightest effort to harm the officer after he desisted from his unlawful attempt; this suggestion, hypothetically stated, should not have been made unless there had been some evidence along this line; its inevitable effect was to connect Frank Francis with the events of the second stage and to hold him responsible therefor.

While the charge was applicable to Gadsden, Williams, and Simmons, who, the evidence tends to show, participated in the second stage of the melee, it had no application to the Francis defendants; it confused the issues in the minds of the jury, authorizing them to conclude that the acts of these strangers, who shot and cut after the struggle was over, would be imputable to the three Francis people, and that they could be held responsible for the acts of strangers who plunged in after the struggle was over.

4. The defense of Frank Francis was self-defense; that of his father and wife, that they acted in defense of Frank, who was being clubbed and shot by the officers, admittedly acting in the excess of their authority. They were entitled to be tried upon these defenses, uninfluenced by what occurred in the second stage of the melee. They were also entitled to rely upon the defense that the homicide was committed by those who shot the deceased in the back while he sat upon the porch. To this extent their defense was antagonistic to the defense of Gadsden and Williams (if he had been apprehended). It is universally held that where the defenses of defendants jointly charged are antagonistic, a severance should be ordered.

In Roach v. State, 5 Cold. (Tenn.), 39, the Court held: "Where two persons are indicted jointly, and upon being arraigned ask for a severance, if it appears that their defences are antagonistic, a severance should be granted."

When two persons are indicted and their defenses are antagonistic and the confessions of each incriminate the other and are designed to be used in evidence a severance should be granted. State v. Desroche, 47 La. Ann., 651, 17 So., 209.

"Where two persons were indicted jointly for murder, and there was evidence tending to show that one of them had made a confession which implicated both, it was held that separate trials ought to be granted, if such evidence was to be offered." Com. v. James, 99 Mass. 438.

"Antagonistic defences calculated to prejudice one of several defendants jointly accused will move the discretion of the Court to grant that one a separate trial U.S. v.Merchant, 12 Wheat., 480, 6 L.Ed., 700; U.S. v. Ball,163 U.S. 672, 16 S.Ct., 1192, 41 L.Ed., 300)." U.S. v.Noble (D.C.), 294 F., 689, 691.

"Where defendants' interests are antagonistic, or evidence, incompetent and prejudicial against one, is to be introduced against another, denial of severance is error, requiring reversal, unless record shows lack of injury." Suarez v. State,95 Fla., 42, 115 So., 519.

5. The joint trial deprived the Francis defendants of their full right of challenges. While this of itself would not entitle them to a severance, it adds some weight to the other considerations suggesting the expediency of a severance.

6. The state knew when the trial began that the declarations of Ethel Francis, made to the detective Rogers, would be introduced in evidence. They affected Gadsden, Paul Francis, and Frank. They should not have been admitted at all, as they were but the declarations of one defendant, not admitting her guilt, and, while made in the presence of Paul Francis and Gadsden, they were made under circumstances which did not call for a response from either; as the detective testified, "They were all, I presume, under the impression that as long as one was talking the others did not have a right to say anything," and that Gadsden shook his head. The presiding Judge very properly instructed the jury to disregard the statements attributed to Ethel, so far as they affected Frank Francis, but the damage had been done; it was practically an impossibility to eradicate the impression that had been made upon the minds of the jurors.

In Horne v. State, 37 Ga. 80, 93, 92 Am. Dec., 49, it is said: "We all from our experience know how difficult it is to have a fair trial when several parties are on trial and they are introduced as witnesses for each other. * * * Besides the confusion of several issues being passed upon at the same time by the same jury, affecting the lives of several persons, and some of those persons on the stand as witnesses, is not likely to enable the jury to do full and impartial justice to each defendant. * * * It originates from complicating too many issues to be decided at once. The humanity of the law did not intend to deprive three men of their lives by a trial thus confusedly conducted. The Court should have granted their motion to sever on their trials, and then the attention of the Court, counsel and jury could have been fixed upon the party on trial; and justice would much more likely be attained in this manner than by the course pursued on the trial."

In Hale v. U.S. (C.C.A.), 25 F.2d 430, 438, the Court said: "It is necessary, therefore, to determine whether the confession of Ramsey as introduced was necessarily prejudicial to plaintiff in error, and whether, in view of the fact that its introduction was anticipated, the motion for severance should have been granted. The connection of Hale with the crime rested almost entirely upon the testimony of Burkhart, himself a confessed criminal, and a man of bad general character. It is debatable whether the conviction of Hale would have resulted from his testimony in the absence of the strong corroboration contained in the Ramsey confession, but concededly the confession of Ramsey was incompetent to bind Hale. The Court so stated when it was admitted, and again in its charge; but it is inconceivable that the impression made upon the minds of the jurors could have been removed by these formal remarks of the Court."

In Flamme v. State, 171 Wis. 501, 177 N.W., 596, 598, the Court said: "The Court in receiving the confession of Mabel Banker properly held it was not competent evidence against Flamme and so instructed the jury. Yet in the very nature of the evidence, if it was considered proof of the guilt of Mabel Banker of the offence charged against her, then it inevitably followed that it proved the offence charged against Flamme. We can conceive of no mental process by which the jurors could do otherwise than so regard it, and thus necessarily prove the offence of Flamme. This clearly presents a case where the confession of a defendant, admissible against her, but not against a co-defendant, must inevitably operate to the prejudice of the latter defendant's rights. Under these conditions a denial to grant separate trials is clearly an abuse of discretion."

In People v. Sweetin, 325 Ill., 245, 156 N.E., 354, 357, the Court said: "While it is generally a matter of discretion with the Court as to whether a separate trial shall be granted, such discretion is not arbitrary, but should be so exercised as to prevent injustice, wherever possible. While the Court instructed the jury that Hight's confessions were not admissible as against plaintiff in error, such instruction could by no possibility eradicate the testimony from the minds of the jury. While theoretically the instruction withdrew the evidence from the consideration of the jury, practically the human mind is so constructed that inevitably the prejudicial effect remained therein. [Citing cases.] To obviate the evils arising from the possibility of the jury being misled by the confessions of a co-defendant, the rule is general that, where one of several defendants jointly indicted has made admissions or confessions implicating others, a severance should be ordered, unless the attorney for the State declares that such admissions or confessions will not be offered in evidence on the trial. Some of the cases have stated that, on the plainest principles of justice, if the prosecutor intends to use such confession, the prisoner shall be tried separately. [Citing many cases.]"

7. In practically all of the cases in which the Court has declined to order a severance, the offenses charged arose out of the same criminal act. The case at bar presents a different situation. The evidence does not tend to show that any act of the Francis defendants would have resulted fatally to Langford, or that they had any connection whatever with the homicidal act of Gadsden and Williams after Langford had sat upon the edge of the porch. The joinder of all of the defendants threw into "hotchpot" all that happened in the two separate stages of the melee. The Francis defendants were being tried for what happened in the first stage, and the other defendants for what happened in the second; separate and distinct offenses. It was but natural, under the Judge's charge, for the jury to conclude that if Frank Francis was to blame in the initial stage, he was responsible for all that thereafter occurred.

II. The exercise of a sound discretion would have demandedand justified a continuance of the case as againstthe defendant Frank Francis.

The undisputed fact is that he was beaten over the head by the officer Langford and knocked to the ground in a helpless condition; that his thigh was shattered by a bullet from McDaniel's 44 derringer held close to his body; that he was on the ground begging to be put into his car and carried to a doctor. The evidence does not show that his request was granted or what medical attention he received. He was carried, not to a hospital, but to a jail, where some kind of a rude mechanical contrivance was applied to his fracture; 24 days later he was lifted at the jail into a truck, carted to the Courthouse, and placed upon a cot, where he lay in the courtroom for three days battling for his life.

If there ever was a time when he needed every ounce of physical and mental energy he ever possessed, it was then, in an unfriendly atmosphere.

It does not require the professional intelligence of a physician to appreciate, as Dr. Foster testified, that a man with a shattered thigh, flat on his back for more than three weeks, suffering from shock and great pain, accompanied by the mental anxiety, which appears to have been well founded, as to his trial, would be in no condition to pass through the ordeal of a three days' battle for his life.

While motions for continuance are normally addressed to the sound discretion of the presiding Judge, when it appears that no other conclusion is reasonably justified under the circumstances than that the defendant should not have been pressed to trial, it must be concluded that the discretion of the trial Judge was not soundly exercised.

In the case of Sacra v. Com. (Ky.), 96 S.W. 858, the syllabus is: "Accused, with others, were indicted for rape on May 23d, the day after the crime was charged to have been committed, and on that day were taken to another place for safe-keeping. On May 31st the cases were called for trial, and accused moved for a change of venue for prejudice of the inhabitants, which was denied, but a continuance was granted until July. A jury having been obtained, the Court adjourned for Independence Day, when the jail where accused was incarcerated was entered by a mob. Accused fled in the darkness, but while in the jail yard he was shot in the face with a shot gun, inflicting slight injuries and later was shot by a squad of police with a pistol, the bullet passing through the trunk near the hip. Accused was brought into Court on a stretcher on the 6th, when he asked for a continuance because of his inability to proceed, which was denied. Held, that the denial of such application was erroneous, and entitled accused to a new trial."

The Court in its opinion (123 Ky., 578, 96 S.W. 858,860) said: "A man on trial for his life should not be compelled to try when there is doubt about his ability to properly conduct his defense."

III. Conceding the truth of the testimony most stronglyagainst the defendant Frank Francis, as evidence it waslegally insufficient to sustain a verdict of guilty of murder.

The rule in cases involving the life of a defendant should not be harsher than that applied to cases involving money or property. In those cases it has frequently been decided that the scintilla rule is unjust, and that, where from the evidence no other reasonable inference can be drawn than that the defendant or the plaintiff should prevail, the Court will grant either a motion for a nonsuit or for a directed verdict, as a conclusion of law.

The testimony in its strongest light against the defendant Frank Francis was to the effect that when he was told that he was under arrest, and directed to get into the car, he grabbed Langford by the coat collar, resisting the attempted arrest, and that after he had been struck over the head by Langford with his pistol and shot by McDaniel, his wife handed him a pistol, and that standing face to face with Langford he shot him twice. This last was the testimony solely of the negro Stepney Glover, which is incredible from the fact that there were no bullet wounds in the front of Langford's body. McDaniel does not confirm this testimony. He testified that as soon as Frank Francis caught hold of Langford's collar, Langford reached for his pistol and struck Frank with it over his left eye; that then Paul Francis shot Langford in the back twice, and that he (McDaniel) shot Frank with his .44 derringer; that Paul Francis then began shooting at him, and "subsequent proceedings interested him no more."

It is indisputable that Langford started the trouble by attempting to arrest Frank without a warrant, and that McDaniel was actively co-operating with him in his unlawful attempt. Certainly catching the coat collar of Langford could not be considered excessive force on the part of Frank in resisting such combined unlawful act. That is all that Frank is shown to have done except to struggle with Langford to prevent further battery. Beyond the incredible testimony of Glover, contradicted by the testimony of McDaniel and by the autopsy, there is not a particle of evidence tending to show that Frank did otherwise than to defend himself from the admittedly unwarranted combination of Langford and McDaniel. After Langford had been roughly handled by the other negroes sympathizing with Frank, he arose and sat upon the porch, where he received the bullets in his back and the blow upon the temple from some unknown assailants. In the meantime Frank was on the ground begging to be lifted into his car and carried to the doctor. It is inconceivable that under these circumstances Frank could be held guilty of murder and sentenced to die.

According to the testimony of McDaniel, Frank had done nothing to Langford, or to him, but to grab Langford by the collar, a mild resistance to the combined efforts of Langford and McDaniel with pistols to unlawfully arrest him. It was then that Langford drew his ready gun and proposed to subdue the man who was acting clearly within his rights. If Frank had shot and killed Langford under these circumstances, no jury should have convicted him even of manslaughter. To complete the unlawful subjugation, McDaniel brought his trusty .44 into action, as he declares because Paul had fired two bullets into Langford. Why shoot Frank, who was not trying to shoot Langford, instead of Paul, who was?

IV. Conceding the truth of the testimony most stronglyagainst the defendant Paul Francis, as evidence it was legallyinsufficient to sustain a verdict of guilty of murder.

According to McDaniel, when Langford struck Frank, Paul ran around the corner of the house and fired twice at Langford. If Langford was committing an unlawful act upon Frank and was attacking him with a deadly weapon, McDaniel standing by co-operating, Paul as the father of Frank had the same right to defend Frank that Frank had and could not be convicted of murder if his bullets had proved fatal, of which there is no evidence. On the contrary, the fatal wounds were either the stab wounds, the author of which is unknown, the bullets of Gadsden and Williams, or the crushing of Langford's skull while he sat on the porch having abandoned the conflict.

V. Conceding the truth of the testimony most stronglyagainst the defendant Ethel Francis, as evidence it was legallyinsufficient to sustain a verdict of guilty of murder.

One witness (Glover) testified that Ethel Francis handed Frank his pistol, and that he shot Langford twice. Assuming the truth of this statement, for the reasons stated in connection with Frank's conviction, and of Paul's participation, Ethel would be protected by the defense which Frank had the right to make.

VI. The case as against the defendant Abraham Gadsden.

There was evidence tending to show that after Langford abandoned the conflict and sat upon the porch, Gadsden and Williams emptied their pistols into his back. This was after the initial stage, and Gadsden could not plead that he was acting in defense of his brother-in-law, Frank. At the same time there is evidence that the participation by Gadsden in the melee was limited to the first stage and that what he did was in defense of Frank Francis. The errors pointed out in connection with the Francis defendants would inure to the benefit of Gadsden.

VII. The charge of the presiding Judge.

The charge complained of, as set forth in exceptions 13, 14, 17, 20, 21, of the Francis defendants, was clearly prejudicial to their interest.

Take the thirteenth exception, for instance. The charge was: "If the officer is actually or intends to make the illegal or unlawful arrest, the mere fact that the officer tells the one he addresses to consider yourself under arrest or that I have a warrant for you or something of that kind, that does not give the person addressed by the officer the right to attack the officer, in other words the person addressed would have no right to actively resist the illegal arrest until the officer had done some overt act to arrest the person; for example had laid his hands upon him." The error being: (a) That under the circumstances of this case it was a charge on the facts; (b) that the inference to be drawn was that the use of a pistol or display of it was not an "overt act"; (c) that active resistance is not permissible until the illegal arrest is an accomplished fact, although after it is an accomplished fact he may lawfully attempt to escape under the guise of resistance, whereas the law permits a man to prevent an unlawful arrest.

The charge was inapplicable to the facts as the state showed; it was for that reason erroneous. Holmes v. Weinheimer,66 S.C. 18, 44 S.E., 82; Hyland v. Tel. Co., 70 S.C. 315,49 S.E., 879.

The defendant Frank Francis was not under indictment for resisting an officer; he was charged with killing him, of which there is not a particle of evidence. Accepting the version of the affair given by McDaniel, all that Frank had done, up to the time Langford drew his gun, was to grab him by the coat collar, which certainly was a warranted resistance to an arrest unlawfully, concededly, attempted, and so ruled by the presiding Judge. When the gun was drawn, even before it was used as a club, the question of resisting arrest passed out of the case and the right of self-defense arose.

The judgment of this Court should be that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for new trials as to all of the appellants, with direction that a severance as between the Francis defendants and the other defendants be ordered.

I have this to say in conclusion, paraphrasing the thought of Lord Shaw of Dunfermline to some extent: The defendants are all of an inferior race; the reins of government and all the instrumentalities of the administration of justice are in the hands of the superior and dominant race; there is laid upon that race the burden of unusual care in administering the principles of jurisprudence, "the marshaled search for justice." Every human judgment is mingled with human error, and in the arbitrament of the greatest of all issues, the issue of life and death, judgment of irrevocable doom (so far as judicial procedure is concerned) should not be passed except with an absolute and abiding confidence in its justness.

ORDER ON PETITION FOR REHEARING