State v. Blackstone

154 S.E. 161, 157 S.C. 278, 1930 S.C. LEXIS 153

• Court: Supreme Court of South Carolina
• Decided: July 14, 1930
• Docket: 12949
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Stabeer.

On May 10, 1929, the defendant, Ollie Blackstone, was tried for murder in the Court of General Sessions for Aiken County, was convicted of manslaughter, and was sentenced to a term of six years.

The defendant, on appeal, excepts to the following charge of the Court with respect to the plea of self-defense :

“The first, is the necessity, because self-defense is bottomed on the law of necessity. The law says if it was neces sary for you to do this in order to save yourself from being killed or from serious bodily harm, you are excused, provided you make out the other elements of self-defense. He must not only show that it was necessary for him to do as he did, and that he believed it, but that a man of ordinary coolness and firmness placed in his situation at the time he fired the shot, would have also believed as he said he believed that it was necessary to shoot or strike to protect himself.”

This exception must be sustained. The charge made actual necessity the test and excluded the defendant’s right to rely upon apparent necessity. The accused has a right to rely upon his belief in the necessity, provided that the circumstances in which he was placed were such as would, in the opinion of the jury, justify such a belief in the mind of a person possessed of ordinary firmness and reason. State v. Bethune, 112 S. C., 100, 99 S. E., 753, and numerous other cases.

The charge here is different from that in State v. Davis, 121 S. C., 350, 113 S. E., 491, in which, the charge being correct as far as it went, it was held that if the defendant desired a fuller statement of the law he should have made a request therefor. The case differs also from those like State v. Herron, 116 S. C., 282, 108 S. E., 93, in which, the charge being taken as a whole, it was held that a statement indicating that the necessity must be actual was cured by another statement that the defendant had the right to rely on appearances. In the case at bar what the trial Judge said with reference to necessity was erroneous, and the error was not cured by anything else in the charge.

It is suggested, however, that the instruction complained of was not error, for the reason that the evidence in the case shows conclusively that, if there was a necessity for the killing, it was actual and not apparent; and hence the proposition of law as to the right of the defendant to act upon appearances was not applicable under the facts of the case.

We do not so read the record. There was evidence tending to show that, while the deceased indulged in rough play with the defendant, there was no bad feeling between the two men; that the knife the deceased had, if he had one, was an old pocket knife “bent back in the back;” and that after he was shot, he exclaimed, “Man, you shot me and I was playing with you.”

The jury might very "reasonably have inferred from this testimony that, if the deceased had a knife, it was a broken one with which he could do no great hurt, and that he really intended no harm to the defendant; any such inference would have convinced them that if there was a necessity for the killing, it was not actual but only apparent. Under these circumstances, the failure of the trial Court to charge the jury that the defendant had a right to act upon appearances was highly prejudicial.

Under this view of the matter it is unnecessary to consider the other exceptions.

The judgment of this Court is that the judgment of the lower Court be reversed, and the case remanded for a new trial.

Mr. Ci-iiEE Justice Watts and Mr. Justice Brease concur.