The opinion of the Court was delivered by
Mr. Justice Watts.The appellants were indicted, tried and convicted of manslaughter at the January term of Court, 1918, for Richland county, before his Honor, Judge Memminger, and a jury. After the appellants were duly sentenced they appeal, and by 10 exceptions allege error and seek reversal.
1
The first exception imputes error that the motion for a separate trial of the appellants was refused on the ground that they were not jointly charged, and that the evidence which might be competent against one might be incompetent .against the other. This exception is overruled. The motion was purely within the discretion of the trial Judge,.and, under the situation as developed when the motion was made, we see no abuse of discretion on the part of his Honor or that he committed any error in overruling the motion.
2, 3
Exceptions 2 and 4 complain of error on the part of his Honor in his charge to the jury. Taking the Judge’s charge as a whole, we see no.reversible error as complained of in these exceptions. His Honor charged the law as made by the case of
State v. McCalla,
101 S. C. 303, 85 S. E. 720. Chief Justice Gary says in this case: “The appellant’s attorneys were granted permission to review said.cases
(State v. Gilliam,
66 S. C. 419 (45 S. E. 6);
State v. Tucker,
86 S. C. 211 (68 S. E. 523);
State v. Revels,
86 S. C. 213 [68 S. E. 523]); but this Court is satisfied that they embody sound propositions of law, and see no reason for overruling the principles upon which they were decided.”
These exceptions are overruled.
Exceptions 3, 5, 6, 8 and 10 allege error and impute to his Honor that he charged upon the facts in violation of law.
4-11
The Judge’s charge, considered in its entirety, is free from error in the particulars set out in these exceptions, and these exceptions are overruled
12
Exception
7
is overruled as being without merit. Exception 9 is overruled. His Honor charged the jury that a child between seven and fourteen is presumed to be incapable of being guilty of negligence, under seven absolutely incapable.
13
It is a question for the jury to determine whether a child over seven years old has sufficient intelligence to observe due care, and no presumption arises one way or the other.
14
In crime there is that presumption as laid down by his Honor, but this could not have been prejudicial to the defendants, for his charge, construed as a whole, was as favorable to the defendants as they had the right to expect.
15, 16
In no event is contributory negligence a defense to an indictment for murder or manslaughter or any criminal offense.
Exception 10 is overruled as being without merit.
His Honor’s charge was fair and impartial, and he fully explained the case to the jury, and submitted to them the guilt or innocence of the accused.
The jury had ample evidence to sustain their verdict that the defendants killed the deceased, and were guilty of operating their automobile without due care and precaution, but in violation of the statute law of the State and the ordinances of the city of Columbia, and that was the proximate cause of deceased’s death, and the defendants’ action was a conscious disregard of other people’s rights on the highways.
Judgment affirmed.