State v. Messervey

dissenting. I dissent. The Court was in error in admitting the testimony of Buckner as complained of in the exception. This evidence was highly prejudicial to the defendant. It was incompetent, as in no view of the case did it show the animus or motive of the killing, as it was long after the killing, and was only introduced to prejudice the defendant before the jury as a hard-hearted, callous man. A constable, when he arrests, and testifies, *261 can generally be relied on to materially assist the State and furnish some evidence highly prejudical to the defendant, and in a number of cases this evidence should be received with great caution.

concurring. There was no error in refusing to charge the last mentioned request. In the case of State v. McGreer, 13 S. C. 464, his Honor, the presiding Judge, was requested to charge that: “If the prisoner really thought that his life was in danger, or that he was in danger of great bodily harm, he is not guilty, provided he did not negligently come to this conclusion,”

The Court therein thus stated the reasons why the request was properly refused-: “To give the instruction asked for in this case would have tended to convey to the jury the idea that the true test was the belief of the accused, as to the necessity for taking life, while we regard the true test to be the opinion of the jury, after hearing all the circumstances, whether the accused actually believed that such necessity existed, and whether, under all the circumstances surrounding the parties, at the time the violence was committed, he was warranted in forming such belief.”

The request to charge in that case was less favorable to the defendant than in the present case. For these reasons I concur in the result.

The opinion of the Court, reciting the f oregoing statement of facts, was delivered by

1 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.

*258 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.

2, 3 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 Colletón. 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 ha.s it, in former jeopardy. Nol. pros, does not bar another indictment. See State v. Haskett, 21 S. C. b. (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.

4 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.

*259 5 *258 3. The next complaint is as to defendant’s twelfth request to charge: “I charge you that an officer who, on his own *259 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 conyict 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.

6 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. Eishburne 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. Eishburne 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.

7 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. *260 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.