¶1 November 9, 1905 — After careful consideration of the petition herein, the Court is satisfied that no question of law or of fact has been either overlooked or disregarded. It is, therefore, ordered, that the petition be dismissed, and that the order heretofore granted staying the remittitur be revoked. *71
Download
Copy
Embed on your site
iframe Markdown Preview card Button Hover to preview · click to copy the code
Status
Disposition: Affirmed
Case posture Disposition Affirmed. Posture Before GARY, J., Greenville, January, 1905. Affirmed.Indictment against John Waldrop. From sentence on verdict, the defendant appeals on the following exceptions:
I. Error in allowing the State to introduce in evidence the contract between D.L. Donald and S.L. Maddox, the said contract not having been proved in the manner required by law.
II. In allowing the witness, D.L. Donald, to testify that he rented the premises in dispute to Mr. Maddox, the deceased, through Mr. Ellison, acting as his agent, the agency not having been proved, and the witness admitting that he was not present at the said time, and there being no proof
that the owner of said premises authorized the said Ellison to make the said contract or ratified the same.
III. Error in allowing the State to interrogate its witness, Seawright, as to his testimony at the coroner's inquest to the effect that `just before Mr. Maddox began to undo his overcoat, he said, I have a written contract for rent of this place in my pocket, and started to put his hand to his pocket to get his contract. At this time Mr. Waldrop shot him.' It being respectfully submitted that it was not shown that the said witness was hostile, and the State, therefore, had no right to contradict him or lay the foundation therefore. Again, it was error to allow this testimony taken by the coroner to go to the jury, inasmuch as the defendant was not there at the time, and any statement made therefore, under such circumstances, would not be competent in the trial of this case.
IV. Error in refusing defendant's 6th request to charge, which was as follows: `VI. That where a person is assaulted by one who has threatened to kill him, in such a manner as to give him reasonable cause to believe that such threat will be carried out, he is not bound to run and escape in that particular instance, if he would thus increase his danger by encouraging his assailant to repeat the attempt when he will perhaps be less prepared to resist.' The said request containing a sound proposition of law and applicable to the case; in that the defendant testified that before he fired the first shot, the deceased ran his hand into his right overcoat pocket, from which he had seen the deceased just before that time draw his pistol, and at the time the defendant fired, the deceased was apparently trying to draw the pistol from the said pocket.
V. Error in refusing to charge defendant's 11th request to charge, which was as follows: `XI. An assault is an attempt unlawfully to apply any, the least, actual force to the person of another, directly or indirectly; the act of using a gesture towards another, giving him reasonable ground to believe that the person using such gesture meant to apply the
actual force to his person. A person assaulted under such circumstances is not bound to retreat and thereby escape the assault, leaving the danger still impending and perhaps increased by the very act of retreating.' The said request containing a sound proposition of law and applicable to the case in that the defendant claimed that he was assaulted by the deceased at the time he fired the first shot, and his testimony in that regard should have been submitted to the jury under the charge of the Court as to what constituted an assault.
VI. Error in refusing to charge defendant's 12th request to charge, which was as follows: `XII. That if the deceased had threatened the life of the defendant and the defendant honestly believed that the deceased intended to carry out the threat by taking his life or doing him some serious bodily harm, and the jury, viewing the circumstances from the standpoint of the defendant at the time of the fatal encounter, conclude as a reasonable man of ordinary reason and firmness he was justified in the belief, then the defendant was entitled to be more watchful and to interpret the acts of the deceased more harshly than he otherwise would have been justified in doing.' The said request containing a sound proposition of law and applicable to the case, in that the defendant offered testimony to the effect that the deceased had said just previous to the fatal encounter that on the 1st day of January he was going into the house if he had to break the door down with an axe, and whether or not this testimony partook of a threat should have been submitted to the jury.
VII. Error in refusing to charge defendant's 13th request to charge, which was as follows: `If a person be in the bare possession of a house claiming it as his home, he has a right to protect it against all forcible intrusion offered by any person except an officer of the law authorized by the order of some court to dispossess him. Ejectment proceedings in some form or other before a civil court is the legal method to test the right of possession to land.' The said request
containing a sound proposition of law and applicable to the case in that the defendant offered testimony tending to show that he had rented the house in question for the year 1905, and had gone into possession, and that when ordered to leave the said premises, at the time of the fatal encounter, the deceased refused to do so, and made an effort to draw his pistol. In this connection, error in refusing the request because `the defendant in his narrative of the homicide did not seek to excuse the act in defense of his habitation but in self-defense.' It being respectfully submitted that the defendant testified as to the facts in connection with the entire transaction and was entitled to whatever benefits such facts would entitle him to under the law.
VIII. Error in refusing to charge defendant's 14th request to charge, which was as follows: `If a person in the possession of a house order another person to leave the house, then it is the duty of such person so ordered to leave to do so, and to resort to a court of law for the enforcement of any right claimed by such person in the house.' The said request containing a sound proposition of law and applicable to the facts of the case in that the defendant offered testimony tending to show that he was in the legal possession of the house in question and just before the fatal rencounter ordered the deceased to quit the premises, which the deceased not only refused to do, but made an effort to draw his pistol in a threatening manner.
IX. Error in refusing to charge defendant's 15th request to charge, which request was as follows: `If the jury believe that D.L. Donald, as the agent for his wife, the owner of the land mentioned in the testimony, made a verbal contract with the defendant, Waldrop, for the possession of the land for the year 1905, and if the jury believe that said Waldrop went into possession of said land in pursuance of said contract, then such possession would be valid as against the world for the space of one year.' The said request containing a sound proposition of law and applicable to the facts of the case in that the defendant offered testimony tending to
show that he rented the premises in dispute for the year 1905 from D.L. Donald, the husband and agent of the owner of the said premises, and had gone into possession thereof, and being in possession, his right to defend his person and his habitation would be much higher and more sacred in the eyes of the law than if he was there as a trespasser.
X. Error in refusing defendant's 16th request to charge, which request was as follows: `Delegated power cannot be delegated. If the jury believe that D.L. Donald, as the agent of his wife, the owner of the land, asked J.A. Ellison to assist him in securing a tenant for the year 1905, then J. A. Ellison had no legal authority to make a contract for the lease of the land, and no person could derive any right in said land by any attempted exercise of any such power on the part of J.A. Ellison.' The said request containing a sound proposition of law and applicable to the facts of the case in that there was testimony tending to prove the facts upon which the said request was predicated.
XI. Error in refusing defendant's 17th request to charge, which was as follows: `While a verbal contract for the future possession of land, so long as it remains executory, cannot be enforced to give the right of possession, yet if the lessee, under such verbal contract, actually go into possession of the land, it is valid to give the lessee a lease in the land for the space of one year as against the world.' The said request containing a sound proposition of law and applicable to the facts of the case in that it showed defendant's right, if the jury believed the facts upon which it was predicated, to the occupancy of the said premises and his right to defend his person and the said occupancy as against any person not possessing an equal right.
XII. Error in charging `the defense the defendant has set up is self-defense,' it being respectfully submitted that the defendant's plea was `not guilty' of the charge alleged in the indictment.
XIII. After having charged that the defendant's plea was self-defense, error in charging that upon the occasion in question,
the defendant would have to show among other things that there was `no other probable means of escape but to shoot,' and that if he had failed to prove this his defense would fall to the ground, it being respectfully submitted that if the defendant was in the lawful occupancy of said house he was not bound to retreat, but had the right to stand his ground and defend his person or his property against any threatened danger. Source: CourtListener
