State v. Bodie

The opinion of the court was delivered by Mr. Justice McIver. Under an indictment for the murder of J. A. Gunter, the defendant was convicted of manslaughter, and appeals upon the several grounds set out in the record. The first exception is as follows: “1. Because his honor erred in allowing the State to put in as evidence the record in the case of the State v. Nathan Bodie, indictment for malicious mischief.” The testimony tended to show that there had been bad blood be-, tween the parties for several years, each making violent threats against the other; and at the conclusion of the testimony of one of the witnesses introduced by the State, for the purpose of show-' ing a threat made by the prisoner against the deceased — in which the witness said the prisoner stated that the deceased had falsely accused him of shooting his mule — it was proposed, upon the part of the State, to introduce the record for the purpose of showing that deceased had prosecuted the prisoner for malicious mischief in shooting his mule. Upon objection being made, counsel for the State stated that the purpose was simply to show that deceased had taken out a warrant against defendant for shooting his mule; whereupon the court ruled that the testimony was admissible, for the purpose of showing the feeling between the parties, and that. — 129 — the record was the best evidence of the fact. Counsel for the prisoner then insisted that if the record is offered, they were entitled to the benefit of showing from it what was the result of the prosecution; to which the court assented, saying that if any part of the record is offered in evidence, the whole of it must go in. The record, as presented, consisted of the affidavit of the prosecutor and the warrant of arrest issued thereon, together with recognizance of the defendant and the testimony of the State’s witnesses taken down in writing by the trial justice, and the indictment, together with the finding of the grand jury endorsed thereon, upon which a nolle prosequi was entered. It cannot be doubted, that in a case of this kind it is competent to introduce testimony tending to show the relations previously existing between the parties (State v. Senn, 32 S. C., 392); and if it was competent to show that one of these parties had instituted a prosecution against the other, surely the best evidence of that fact was the record; and that was just what the court ruled in this case. But, in addition to this, inasmuch as the defendant was not convicted of murder, but only of manslaughter, thereby ignoring the ingredient of malice, it would be somewhat difficult to understand how the testimony in question would be relevant to the charge of which the defendant was convicted, and, therefore, even if its admission could be held incompetent, its reception could not be regarded such an error of law as would warrant this court in reversing the judgment. The second exception imputes error in excluding the evidence of Mrs. Manly Johnson, introduced for the purpose of contradicting John T. Arthur, a witness for the State. It seems that when Arthur was on the stand as a witness for the State, he was asked, on his cross-examination, whether he had not made certain statements to J. M. Johnson in the presence of his wife, Mrs. Manly Johnson, which, it is claimed, tended to show threats on the part of the deceased to use the road over prisoner’s land at all hazards, which it was claimed the prisoner had forbidden him from using. But upon examining the testimony as set out in the “Case,” it is apparent that the point upon which it was proposed to contradict Arthur was wholly irrelevant and incompetent to the issue which was being tried, for at most it only amounted to an expression of' — 130 — Arthur’s opinion as to what the deceased intended to do, and did not even purport to be a declaration made by the deceased. In addition to this, it does not appear -that Arthur denied the statement which it was sought to attribute to him, but simply said that he had no recollection of using any such language. It is clear, therefore, that the proposed testimony of Mrs. Manly Johnson was properly excluded, not, however, upon the ground that the threat, which it was supposed it would establish, had never been communicated to the prisoner, for there may be cases in which uncomtnunicated threats might be competent. Upon this subject, see Wiggins v. People, 93 U. S., 465, and the cases therein cited. The third exception was very properly abandoned on the argument here, as it is very clear that it could- not be sustained, and it is not necessary, therefore, to consider or state it. All the remaining exceptions complain of errors in the charge of the Circuit Judge, and in his refusal to charge certain requests in the form in which they were submitted, and we think'they are best answered by the charge of bis honor, Judge Kershaw, which is set out in the record, and which should be incorporated in the report of this case; for it seems to us that the law applicable to the several views which might be taken of the facts, is most fully, clearly, and correctly set forth in the charge. But while it may be difficult, if not impossible, to add anything to what is there so well said, perhaps it may be our duty to consider the several-exceptions in their order, and this we will proceed to do. The fourth exception complains that the Circuit Judge erred in disposing of defendant’s requests to charge, by saying to the jury: “That these requests are based upon the supposition on their part, that there was a trespass committed by the deceased, and that the object of the prisoner at the bar was to remove the trespasser, and these principles of law mostly apply only in case you find that Mr. Bodic was engaged in an effort to remove a trespasser from his land. They are all based upon that supposition, that his object was to remove a trespasser.” The gravamen of the complaint, as we understand it, is that in using the language above quoted, the judge ignored the fact, that the prisoner might have gone to the scene of the rencounter, not for the purpose of removing a trespasser, but simply for the purpose of obtaining — 131 — evidence as to who was the person trespassing, and left the jury to infer that if the prisoner went there for the latter purpose, the principles announced in the requests to charge would not apply. It must be remembered, however, that the remarks of the judge were made in reference to the requests as framed, and as they were not so framed as to cover a case where the prisoner went to the scene of action simply for the purpose of obtaining evidence as to who was the trespasser, and, on the contrary, were framed so as to present the law applicable to a case where the purpose was to remove a trespasser, it is very manifest that there was no objection to the remark of the judge which forms the basis of this exception. But, more than this, it seems to us that the judge, in his general charge, had sufficiently stated the law as to the doctrine of self-defence, when one is upon his own premises for any lawful purpose, and it was not necessary to repeat this when dealing with special requests applicable to a particular state of circumstances. The fifth and sixth exceptions may be considered together. They read as follows: V. “Because the Circuit Judge charged that 'in all questions of this kind, where self-defence is interposed as a plea, the defendant must satisfy you, not beyond a reasonable doubt, but by the preponderance of testimony, that he is entitled to the protection of that defence. * * * The State is bound to prove all beyond a reasonable doubt. The State is bound to prove every point against the defendant beyond a reasonable doubt, or else the State must fail to obtain a conviction; but when the matter has been established beyond a reasonable doubt, or when the matter has been established, then the defendant must satisfy you by a preponderance of testimony, not beyond a reasonable doubt, but as matter of belief, that he was acting in self-defence.’ In this, it is submitted, that his honor erred, for such charge took from the defendant the benefit of the reasonable doubt, which, in all cases, is thrown around him as a shield. YI. Because his honor charged that ‘the preponderance of testimony means simply this: that you weigh the testimony, and if it is inclined to the one side more than the other, then that side has the preponderance. It is like weighing a thing in a balance: where the weightiest testimony lies, there is the pre — 132 — ponderance, and there must be a preponderance of testimony in favor of the defendant to establish his plea of self-defence, or else he fails.’ In this, it is submitted, that his honor erred, for it takes away from the defendant the benefit of the reasonable doubt (as) to' whether or not the preponderance of this testimony was in his favor, and if the jury had a reasonable doubt upon such question, it was their duty to give it to the defendant.” The point of these two exceptions, as gathered from their terms and illustrated by the argument here, is, not that there was any error in saying to the jury that a defendant who sets up any special defence, such as an alibi, insanity, or self-defence, is bound to establish it by a mere preponderance of testimony, and need not establish it beyond a reasonable doubt, nor in defining what is meant by a preponderance of evidence — but the complaint seems to be that the error consisted in not instructing the jury further, that if they had a reasonable doubt as to which way the preponderance of the evidence was, they 'must give the defendant the benefit of such reasonable doubt. A sufficient answer to this would be, that we are unable to discover that the Circuit Judge was requested to give such further instruction to the jury. But as we do not wish to rest our conclusion in a case like this upon what might be regarded as a technicality, we will not decline to consider the question. Inasmuch as it is quite clear that if the jury entertained a reasonable doubt whether the preponderance of evidence was in favor of the plea of self-defence, and inasmuch as the jury had been explicitly instructed that “the State is bound to prove every point against the defendant beyond a reasonable doubt,” and in another portion of the charge had been expressly told that if they “had a reasonable doubt upon any question of guilt arising in the case, you will give the benefit of that doubt to the defendant,” they could not fail to understand that if there was a reasonable doubt as to which way the preponderance of the evidence as to the plea of self defence lay, there would be such a reasonable doubt as to one of the- material points in the case as would require an acquittal. The rule, as we understand it, is, that while the State, in a criminal case, is bound to prove evei’y essential element of the charge made beyond a reasonable doubt, the — 133 — same strictness of proof is not required of a defendant who sets up a special defence, for he is only required to prove such defence by a preponderance of evidence; but this, of course, is subject to the general rule that if, upon the whole testimony, both on the part of the State and the defendant, the jury entertain a reasonable doubt as to any material point in the case, the defendant is entitled to the benefit of such doubt. See State v. Paulk, 18 S. C., 514; State v. Bundy, 24 Id., 439; State v. Welsh, 29 Id., 4. The seventh exception is in these words: “Because his honor charged the jury : ‘and if you find that the deceased did present his gun to the prisoner before he shot him, and it is not self-defence, why, then, it would be sufficient to reduce it to manslaughter, if he is not justified under the plea of self-defence.’ In this, it is submitted, his honor erred, for such instruction was calculated to, and did, confuse the jury ; for if the deceased did present his gun to the prisoner before he shot him, then the jury should have been instructed that, under such circumstances, the defendant would have been justified in self-defence in killing the deceased ; and it was error in this connection to instruct the jury that such killing might be manslaughter.” It is very manifest that this exception cannot be sustained, as it is based upon the untenable assumption that the mere fact that deceased presented his gun at the prisoner before he shot, would warrant the prisoner in taking the life of the deceased; for such assumption would have ignored the other elements necessary to make a case of self-defence, as, for example, as to who was in fault in bringing on the difficulty, and other points which had been fully and clearly explained to the jury in the general charge. The eighth and ninth exceptions not having been taken in the manner prescribed by rule V. of this court might, be disregarded, but for the reason indicated above, we will not decline to consider them in this case. The eighth exception complains of error in refusing to charge defendant’s sixth request, which reads as follows: “If the jury believe that the defendant owned the land on which the homicide was committed, and that he had notified the deceased not to haul logs over or come upon the same, and that the deceased had not acquired a prescriptive right to the road leading — 134 — through said land, then the deceased had no right to enter upon said land, and if he did so, he became a trespasser, and the defendant had in law the right to request him to leave, and if he refused to go, the defendant had the right to put him off said premises, and in so doing to use such force as was necessary to accomplish that purpose; and if, while the defendant was so .engaged in endeavoring to make the deceased leave said premises, the deceased assaulted the defendant in such a manner as to cause a man of ordinary firmness to apprehend death or great bodily injury, then the defendant was justified in resisting such assault, even to the taking of the life of the deceased.” The Circuit Judge did not refuse to charge the principles presented by this request, but used this language: “I decline to charge the sixth request in the language in which it is couched.” So that it is manifest that the judge, while approving the general principles announced therein, objected only to the terms in which they were expressed ; and in this he was not in error, for the language used in the request ignored the distinction between a-trespass on land in possession of another and a trespass upon land owned by another. The law permits much more to be done in defence of possession than of mere ownership or legal title unaccompanied by possession. The language in which the request was couched also ignored the effect of a license to enter. But, in addition to this, the Circuit Judge had already fully and explicitly instructed the jury as to the law applicable to the right of a person to remove a trespasser who had intruded upon his possession, and it certainly was no error to decline to repeat such instructions in the language selected by counsel, especially when such language was not precisely accurate. The ninth exception, which imputes error to the Circuit Judge in declining the eleventh request, which relates to reasonable doubts, and the tenth exception, which alleges error in the definition or description of reasonable doubt, may be considered together.1 The eleventh request was not, in fact, refused, but — 135 — its phraseology was changed so as to express the idea, really more favorably to the prisoner than it was expressed in the request, viz , that if there was a reasonable doubt as to any point in the case, the jury should give the benefit of such doubt to the prisoner. And as to the tenth exception, the definition or description of a reasonable doubt, it is sufficient to say that it was couched in very much the same language as that which was approved by this court in the recent case of the State v. Senn, supra. The objection seems to be to the use of the word “strong,” but when it is considered that it has been frequently said that a reasonable doubt, which would avail the accusedj must not be a mere fanciful doubt, but that it must be a serious, well-founded doubt, growing out of the evidence, there can be no reason to suppose that a jury would be misled by the substitution of the word “strong” for the words “serious” or “substantial” or “well-founded.” All of these words are used, not in the sense of powerful, or overwhelming, but simply in contradiction to the words “flimsy,” “fanciful,” or “slight,” and we cannot suppose that a jury would ever understand them in any other way. The law does not require that a criminal charge shall be proved beyond the slightest doubt, and it is only where the evidence leaves upon the minds of the jury — not a weak or slight doubt — but a serious or strong and well founded doubt as to the truth of the charge, that the law, in its mercy, declares that the accused shall have the benefit of the doubt. The judgment of this court is, that the judgment of the Circuit Court be affirmed.