Mr. Justice Cothran
¶1
(concurring in result) : I concur in the judgment of affirmance in this case, but wish to add the following observations:
¶2
I think that it is unfortunate ever to- use the adjective “competent” as descriptive of
evidence.
A witness is
competent
to testify, for the reason that his qualifications as a witness are perfect. Evidence is
admissible,
for the reason that it is relevant, if presented in proper form, and is not in conflict with a rule of law.
¶3
I do not agree to the proposition that
in any case
the admissibility of evidence is a matter within the discretion of the trial Judge. I agree that, when technically the trial Judge had committed error in his ruling upon the admissibility of evidence, it may be held by this Court that the error was not sufficiently prejudicial to warrant a reversal;
but the admissibility of evidence is a matter of law,
in the decision of which he has no discretion.
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Case posture Posture Before RICE, J., Colleton, Fall Term, 1925. Affirmed.Harry Petit was convicted of manslaughter, and he appeals.
A portion of the charge of the presiding Judge was as follows:
(6) I further charge you that, if a third party attempts to quiet a disturbance, and is told that his services are not needed, and that there is no danger of any one sustaining bodily harm from the disturbance, then it is the duty of the third part to leave the premises and not attempt any violence. If the third party is told to leave by those occupying the premises, then it is his duty to leave, and, if he remains, he does so at his own peril.
The Court: Now, Mr. Foreman, in that case, I will do the best I can. If Padgett, the man who was killed, heard a disturbance across in this house, and he thought some one was going to be injured there, in other words going to be a breach of the peace, and he went there to quiet the disturbance, and to prevent the breach of the peace, or to prevent some one from doing harm to the other, then he was no intruder. If he got over there, and there was no necessity for him to interfere, and he knew it was not, and should have known from the situation he found there, and he was
asked to leave the premises, to get out of the house, and the yard, then he should have gone, because after that he then would stand in the position of a trespasser; but, if he went over simply to protect some one, and if he thought some person in that house was about to receive some injury, then it was not only — had a right to go, but he should have gone; and then in that case he would not have been any trespasser. If there was no necessity for it, and, when he got over there, he found no necessity for it, and he was asked to leave the yard, and then he should have left. After that, when he found no necessity for him to remain, and if he found no necessity, no danger of any one being hurt, and then he should have left the yard, if he was requested to do so.
I further charge you that before a third party can use any violence in quieting an attack by one person on another, the circumstances must be such that the third party will have reasonable cause to believe that a felony is about to be committed, and, if this reasonable cause does not exist, then the third party cannot intervene, and it is his duty to leave.
The Court: Now, I can't charge you exactly in those words, because it would not make any difference what some other person thought, and as common sense, and with his own eyes might have thought that there was danger of some one receiving serious bodily harm, and if so, then it was his duty to interfere to prevent some person — another person in that house from receiving serious harm.
I further charge you that, if a third party enters the premises of a person on a peaceful mission, and is told to leave by the party occupying the premises, then it is his duty to leave, and the party occupying the premises has the right to eject him from his habitation, or its curtilage, and can use so much force as may be necessary to do so.
The Court: Now, the mere fact I could not charge that in toto as it stands there. The mere fact he might have remained for a short while, and he should be given, even where no person is in danger, no one was going to be hurt,
and if he got over there with the purpose of trying to protect some one from being hurt, and if he found no one was being hurt, and even if he was ordered out of the yard, then he did have a reasonable time in which to leave the premises, and would not justify any one, because he did not instantly leave, to cut him, or strike him, or kill him, or do any other harm, and he was entitled to a reasonable time in which to leave the premises, of course, he would not be justified in using any kind of violence, unless it was necessary to protect some one from being hurt.
The Court: You want me to charge further than that?
Mr. Jefferies: I think your last statement covers the balance of that last paragraph. That last statement could not use any violence, unless it was necessary, covers that last statement.
The Court: What about the seventh?
Mr. Jefferies: I think your Honor has covered that.
The Court: Now, the eighth?
Mr. Jefferies: I ask your Honor to charge that.
The Court: I have not covered that entirely, and I will read it all if you desire for me to do so.
Mr. Jefferies: Yes, sir.
(8) I charge you that the dwelling house of a man, where he lives, is his home, or castle, and he may repel force by force in the defense of his person, habitation or property, against one who manifestly intends and endeavors to do him bodily injury or to take his life; and in such case he is not bound to retreat, but may pursue his adversary until he has secured himself from all danger, and, if he kills his adversary it is excusable homicide. State v. Brooks , 79 S.C., page 148; 60 S.E., 519; 17 L.R.A. (N.S.), 483; 128 Am. St. Rep., 836; 15 Ann. Cas., 49.
The Court: That's correct law, Mr. Foreman and gentlemen. He may use whatever amount of force is necessary, or appears to him to be necessary, in order to protect himself.
Mr. Jefferies: No. 10, your Honor, please. No. 9, I think your Honor has covered it.
(10) The jury is instructed that the fact that the defendant was only renting the premises on which the killing took place in no way affected his rights under the law. In other words, he had the right to act the same on the rented premises as he would have had, had the property been his own.
The Court: That's correct, the fact he might have been renting makes no difference as to the protection of his home. He was renting it, and he had the exact, the same rights to protect his home, while he was renting the place, and he was living there, and as if he owned it in fee simple.
The Court: Now the eleventh, I think I have covered that, and the twelfth I think I have covered that. If you want me to read them I will.
Mr. Jefferies: I would like for your Honor to read No. 12.
(12) I have referred in the charge above to habitation, or castle, and I charge you that any portion of a man's dwelling, including the steps leading into the dwelling, is a part of the castle, and that if a defendant takes the life of a trespasser in defense of himself, or property or home within the dwelling or on the steps, or any other portion of the habitation, the killing is justifiable, and the verdict in such a case should be not guilty. 30 C.J., 82.
The Court: You take that, Mr. Foreman and gentlemen, in connection with what I have already told you.
The Court: Now the thirteenth. Now I do not remember the testimony, whether it occurred in the garden, or in the chicken yard?
Mr. Moorer: Occurred in the chicken yard between the two houses.
The Court: You mean the actual injury?
Mr. Jefferies: Our position, it occurred in the actual dwelling, and standing in the door, inside of the house.
The Court: I will charge it.
(13) I further charge you that where a house, premises, yard or anything within the curtilage of a dwelling are jointly occupied, used and possessed by two persons; each joint occupant being entitled to possession, need not retreat when attacked while inside yard, building and premises. If you find that the defendant had the right in this case to use the places where the homicide occurred, and if said right also belonged to the deceased, then I charge you that the defendant in this case would not have to retreat in order to make out a plea of self-defense, provided, however, the defendant otherwise complies with the rules of self-defense as I have given them to you. 30 C.J., 72. State v. Marlowe , 120 S.C. 205 ; 112 S.E., 921 . State v. Bowers , 122 S.C. 275 ; 115 S.E., 303 .
The defendant's ninth and tenth exceptions are as follows:
(9) In that his Honor erred in modifying the defendant's sixth request for charge; the error being that a party gaining admission to the premises of another with the avowed purpose of quieting a difficulty is under the legal duty to leave the premises when he is told by those occupying same that his services are not needed and that no one is in danger.
(10) In that his Honor erred in modifying defendant's request for charge, the request and the modification being as follows, to wit:
I further charge you that, before a third party can use any violence in quieting an attack by one person on another, the circumstances must be such that the third party will have reasonable cause to believe that a felony is about to be committed, and, if this reasonable cause does not exist, then the third party cannot intervene, and it is his duty to leave.
The Court: Now, I can't charge you exactly in those words, because it would not make any difference what some other person thought, and as common sense, and with his
own eyes might have thought that there was danger of some one receiving serious bodily harm, and if so, then it was his duty to interfere to prevent some person — another person in that house from receiving serious harm.
The error being that his Honor by the charge in effect told the jury that a person seeking to quiet a domestic difficulty could act as he saw fit, and that he would not be governed by the elementary rule that a party's acts under any emergency should measure up to what a reasonable person would have done under similar circumstances. This modification was highly prejudicial to the defendant, in that there was testimony to the effect that the deceased had been drinking heavily, and for the trial Judge to charge that under the influence of whisky he could decide himself whether it was necessary for him to intervene in a domestic difficulty would completely destroy the rule of reason so well established by law, and such a charge was bound to prejudice the defendant before the jury.
The second, fourth, and fifth requests to charge on the part of the State, and the remarks of the Court concerning them, were as follows:
(2) One in possession of any premises, or having the right to use the same, has a right to investigate, and quiet by peaceable means any disorder or breach of the peace thereon, and in doing so may request the disorderly ones to cease their disorderly conduct. If in doing so he is unlawfully assaulted by the disorderly person, it could not be said that he had brought on the difficulty by attempting to quiet the disorder.
(4) If a person is in a state of voluntary intoxication at the time he commits a homicide, that would not excuse the crime. The Courts of South Carolina hold to the wise old doctrine that voluntary drunkenness, of whatever degree, is no excuse for crime committed under its influence. Any other principle would be destructive to peace and order of society. Otherwise, murderers might soak themselves in
liquor for the double purpose of nerving themselves for the act and of sheltering their intended crime. State v. Bundy , 24 S.C. 439 ; 58 Am. Rep., 263.
The Court: Now, Mr. Foreman and gentlemen, I am simply reading the request, and not saying anything about the facts of this case, whether this man is drunk or sober is for you, whether the defendant in this case was drunk or sober; and all these questions are matters for you, and I am not intimating to you one way or the other, that's a matter entirely for you to pass upon.
(5) I charge you that, where a husband is about to feloniously assault his wife with a knife or other deadly weapon, any citizen has a right to interfere by using such force as may be necessary, to prevent the commission of the felony, even to the extent of taking the life of the husband attempting to commit the felony, provided that neither the wife nor such citizen is at fault in bringing on the difficulty.
The Court: I charge you that.
Now, I think, gentlemen, that is about all, unless something further the lawyers want me to charge.
Mr. Jefferies: I have nothing further.
Mr. Moorer: I think, your Honor, in stating back there, you might have charged upon the facts of the case.
The Court: Now, gentlemen, in charging the requests to charge to you I am not intimating whether this man was drunk or sober, that's for you to determine, and I have not got anything to do with that, or whether the man that was killed was drunk or sober, all of these questions are for you, and I am not intimating anything about it, and I do not think any one could infer that I have. Source: CourtListener
