September 28, 1907. The opinion of the Court was delivered by
The defendants, Vincent Cook, Bose Cook, Daisy Cook and Henry Cook, were tried at February, 1906, Term of the Court of General Sessions for Hampton County, under an indictment charging them
with the murder of Hampton Smith. Vincent Cook, Bose Cook and Daisy Cook were convicted of manslaughter, and Vincent Cook and Bose Cook were convicted also under the second count of the indictment, charging them with carrying concealed weapons. The following statement appears in the record:
"On the trial of the cause the State offered testimony tending to show that at the time of the alleged homicide there was a carnival in the town of Hampton, and that deceased was one of a number of special policemen, duly appointed by the town council to preserve order, and that while attempting to arrest Daisy Cook for an alleged breach of the ordinances of the said town of Hampton, he was set upon by the brothers of the said Daisy Cook and shot to death with pistols. The defendants offered testimony tending to prove that the defendants Bose Cook and Vincent Cook came up suddenly and, finding their brother assaulted, interfered in his defense, and, under an impending necessity to save their brother from death or serious bodily harm, they took the life of the deceased. They further offered testimony tending to prove that they were all without fault in bringing on the difficulty. The State replied to the defense and offered testimony tending to show that Daisy Cook was cutting up the tents belonging to the parties who owned the show or carnival, and, furthermore, that his codefendants had, on the afternoon previous to the killing in the evening, made threats against the life of the deceased. The issue was submitted to the jury on the charge of the Court."
The first exception charges the Circuit Judge committed error in ordering the defendant to go to trial on the 22d day of February, a legal holiday. The facts bearing on this point are thus stated in the record: "On the 21st day of the said month, Mr. Tillinghast, one of the attorneys for the defendants, inquired of the Judge whether he would hold Court on the 22d of February, as he thought he could not do so, that being a holiday. The
Judge ruled that he knew of no law to prevent the Court being held on the succeeding day. The case was then called on the 22d of February, and no further objection being raised, the case proceeded to trial with the result above stated." The point is purely technical and defendants suffered no detriment. It will be observed that Mr. Tillinghast does not appear to have had reference to this or any other case, and the response of the Circuit Judge cannot be regarded as an adjudication made in this cause. To make the objection available on this appeal, it should have been distinctly made against proceeding with this cause when it was called for trial. Not having been made, it must be considered objection to the trial on the 22d day of February was waived. Mitchell v. Bates, 57 S.C. 52, 35 S.E., 420; 21 Cyc., 444.
The second ground of appeal is as follows: "That his Honor, the presiding Judge, erred in charging the jury, in reference to the right to kill in defense of another, as follows: `But if your brother or one near and dear to you provokes a difficulty, or puts himself in the wrong and bring it on, the law does not allow you to go there, take his place and kill that man and say you are guilty neither of murder nor manslaughter. * * * The law does not give the person who is near and dear to you the right to provoke a difficulty and then let you come in and kill some one, when he has brought it on himself, and get out of it by your saying he was near and dear to you, and you did the killing on that account. But if he was without fault in bringing on the difficulty and the law would justify him in defending himself, you have a right to go in and defend him. But if he brings on the difficulty and you take part, you do it at your own risk, and if he took life under similar circumstances, and would have been guilty of murder or manslaughter, and you go in, take his place and take life under those circumstances, then you are guilty of murder or manslaughter.' The error being that the said charge held one striking in defense of a brother bound and affected by a fault on the part of the
brother defended, in bringing on the difficulty, although he may have acted without knowledge of such fault or may have had no opportunity to ascertain who was at fault in bringing on the difficulty, before being compelled by the pressing necessity to act in defense of his brother; and he may be without fault himself; whereas, it is respectfully submitted, that in order for one to be affected by the fault of another he must at least have some knowledge or opportunity to know it."
This exception raises the important question whether one who undertakes to assist a near relative who is in danger of death or great bodily harm at the hands of an antagonist acts at his peril if the person assisted was actually in fault in provoking the difficulty. There is some authority for the view that the assistant is guilty who takes life in aiding a relative in apparent danger of death or great bodily harm if he knew his relative to be the aggressor or as a reasonable man should have known it, but not otherwise. Chambers
v. State (Tex.), 79 S.W. 572; State v. Harper (Mo.),51 S.W. 89; Little v. State (Miss.), 40 So., 105. There are a number of other cases decided by the Supreme Court of Texas to the same effect, but in that State, as in Missouri, the law as to homicide has been greatly modified by statute.
Even if it be assumed, however, the criminal codes of those States have not affected the consideration to be given these decisions by courts of other States, they are opposed to the great weight of authority from the earliest times to the present.
In Hale's Pleas of the Crown, vol. 1, p. 484, the rule is thus stated: "The like law had been for a master killing in the necessary defense of his servant, the husband in defense of the wife, the wife of the husband, the child of the parent, or the parent of the child, for the act of the assistant shall have the same construction in such cases, as the act of the party assisted should have had, if it had been done by himself, for they are in mutual relationship the one to the other." See, also, 1 Bishop on Criminal Law, sec. 877, and
21 Cyc., 826, et seq. The doctrine is thus comprehensively stated in Wharton on Homicide (3d edition), sec. 332: "The doctrine of freedom from fault in bringing on a difficulty as a condition precedent to a plea of self-defense applies with equal force to a case in which one person interferes in a difficulty between two others in behalf of, or to protect one of them; and generally speaking a person who does this will not be allowed the benefit of the plea of self-defense, unless such plea would have been available to the person whose part he took in case he himself had done the killing, since the person interfering is affected by the principle that the party bringing on the difficulty cannot take advantage of his own wrong.
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September 28, 1907. The opinion of the Court was delivered by
The defendants, Vincent Cook, Bose Cook, Daisy Cook and Henry Cook, were tried at February, 1906, Term of the Court of General Sessions for Hampton County, under an indictment charging them
with the murder of Hampton Smith. Vincent Cook, Bose Cook and Daisy Cook were convicted of manslaughter, and Vincent Cook and Bose Cook were convicted also under the second count of the indictment, charging them with carrying concealed weapons. The following statement appears in the record:
"On the trial of the cause the State offered testimony tending to show that at the time of the alleged homicide there was a carnival in the town of Hampton, and that deceased was one of a number of special policemen, duly appointed by the town council to preserve order, and that while attempting to arrest Daisy Cook for an alleged breach of the ordinances of the said town of Hampton, he was set upon by the brothers of the said Daisy Cook and shot to death with pistols. The defendants offered testimony tending to prove that the defendants Bose Cook and Vincent Cook came up suddenly and, finding their brother assaulted, interfered in his defense, and, under an impending necessity to save their brother from death or serious bodily harm, they took the life of the deceased. They further offered testimony tending to prove that they were all without fault in bringing on the difficulty. The State replied to the defense and offered testimony tending to show that Daisy Cook was cutting up the tents belonging to the parties who owned the show or carnival, and, furthermore, that his codefendants had, on the afternoon previous to the killing in the evening, made threats against the life of the deceased. The issue was submitted to the jury on the charge of the Court."
The first exception charges the Circuit Judge committed error in ordering the defendant to go to trial on the 22d day of February, a legal holiday. The facts bearing on this point are thus stated in the record: "On the 21st day of the said month, Mr. Tillinghast, one of the attorneys for the defendants, inquired of the Judge whether he would hold Court on the 22d of February, as he thought he could not do so, that being a holiday. The
Judge ruled that he knew of no law to prevent the Court being held on the succeeding day. The case was then called on the 22d of February, and no further objection being raised, the case proceeded to trial with the result above stated." The point is purely technical and defendants suffered no detriment. It will be observed that Mr. Tillinghast does not appear to have had reference to this or any other case, and the response of the Circuit Judge cannot be regarded as an adjudication made in this cause. To make the objection available on this appeal, it should have been distinctly made against proceeding with this cause when it was called for trial. Not having been made, it must be considered objection to the trial on the 22d day of February was waived. Mitchell v. Bates, 57 S.C. 52, 35 S.E., 420; 21 Cyc., 444.
The second ground of appeal is as follows: "That his Honor, the presiding Judge, erred in charging the jury, in reference to the right to kill in defense of another, as follows: `But if your brother or one near and dear to you provokes a difficulty, or puts himself in the wrong and bring it on, the law does not allow you to go there, take his place and kill that man and say you are guilty neither of murder nor manslaughter. * * * The law does not give the person who is near and dear to you the right to provoke a difficulty and then let you come in and kill some one, when he has brought it on himself, and get out of it by your saying he was near and dear to you, and you did the killing on that account. But if he was without fault in bringing on the difficulty and the law would justify him in defending himself, you have a right to go in and defend him. But if he brings on the difficulty and you take part, you do it at your own risk, and if he took life under similar circumstances, and would have been guilty of murder or manslaughter, and you go in, take his place and take life under those circumstances, then you are guilty of murder or manslaughter.' The error being that the said charge held one striking in defense of a brother bound and affected by a fault on the part of the
brother defended, in bringing on the difficulty, although he may have acted without knowledge of such fault or may have had no opportunity to ascertain who was at fault in bringing on the difficulty, before being compelled by the pressing necessity to act in defense of his brother; and he may be without fault himself; whereas, it is respectfully submitted, that in order for one to be affected by the fault of another he must at least have some knowledge or opportunity to know it."
This exception raises the important question whether one who undertakes to assist a near relative who is in danger of death or great bodily harm at the hands of an antagonist acts at his peril if the person assisted was actually in fault in provoking the difficulty. There is some authority for the view that the assistant is guilty who takes life in aiding a relative in apparent danger of death or great bodily harm if he knew his relative to be the aggressor or as a reasonable man should have known it, but not otherwise. Chambers
v. State (Tex.), 79 S.W. 572; State v. Harper (Mo.),51 S.W. 89; Little v. State (Miss.), 40 So., 105. There are a number of other cases decided by the Supreme Court of Texas to the same effect, but in that State, as in Missouri, the law as to homicide has been greatly modified by statute.
Even if it be assumed, however, the criminal codes of those States have not affected the consideration to be given these decisions by courts of other States, they are opposed to the great weight of authority from the earliest times to the present.
In Hale's Pleas of the Crown, vol. 1, p. 484, the rule is thus stated: "The like law had been for a master killing in the necessary defense of his servant, the husband in defense of the wife, the wife of the husband, the child of the parent, or the parent of the child, for the act of the assistant shall have the same construction in such cases, as the act of the party assisted should have had, if it had been done by himself, for they are in mutual relationship the one to the other." See, also, 1 Bishop on Criminal Law, sec. 877, and
21 Cyc., 826, et seq. The doctrine is thus comprehensively stated in Wharton on Homicide (3d edition), sec. 332: "The doctrine of freedom from fault in bringing on a difficulty as a condition precedent to a plea of self-defense applies with equal force to a case in which one person interferes in a difficulty between two others in behalf of, or to protect one of them; and generally speaking a person who does this will not be allowed the benefit of the plea of self-defense, unless such plea would have been available to the person whose part he took in case he himself had done the killing, since the person interfering is affected by the principle that the party bringing on the difficulty cannot take advantage of his own wrong. If the person sought to be protected, provoked or brought on the difficulty, he must have clearly manifested a desire and intention to retire from the conflict; and even then the person interfering would not be justifiable if he struck the fatal blow in pursuance of a previous design to assist his friend in the event of a personal difficulty. And where one person interferes in behalf of another who was the aggressor, and there is opportunity to retreat after the interference, and advantage is not taken of it, the person interfering can claim no greater right than the other, and neither of them can invoke the doctrine of self-defense. Thus, if a son fight in defense of his father, his act in doing so will receive the same construction as that of the father, and if the latter was the aggressor in bringing on the difficulty, and could not plead self-defense, the same rule applies to the son. And the son cannot rely on his own freedom from fault in bringing on the difficulty, as a defense, where he knew the father had provoked the attack; both must have been without fault in bringing it on. Nor is a father justified in killing the adversary of his son, where the son had provoked and brought on the conflict in which he was placed in imminent danger. And the plea of self-defense cannot be interposed by a father who kills an officer rightfully seeking to arrest his son, to prevent such arrest. Nor can one strike to relieve a brother from peril unless the brother was free from
fault in bringing on the difficulty which placed him in peril. And if a person in whose defense a brother engaged was in fault, and had not retreated or attempted to retreat, the interference is not justifiable or excusable." The following cases support the same view: Wood v. State (Ala.), 86 Am. St., 71, and note; Utterback v. Commonwealth (Ky.), 88 Am. St., 329, and note; People v. Travis, 56 Cal., 251;Louisiana v. Giroux, 26 La., 582; Sharp v. State,19 Ohio, 389; State v. Brittain, 75 N.C. 174; 74 Am. St., 736, note.
There are some expressions in Wharton on Homicide and other text-books which seem to be at variance with the text above quoted, but they will be found to be merely a statement of the rule as laid down in the Texas and Missouri cases to which we have referred.
The precise question has never been decided in this State, so far as we can discover, but the same principle was involved in State v. Anderson, 1 Hill, 340. There the right to arrest a felon was under discussion, and the Court held, in order for the party who killed in the effort to arrest one charged with the felony of murder to excuse himself, he must show that a voluntary homicide, presumed by the law to be felonious, had been committed and the party charged had perpetrated it. The Court uses this language: "The homicide actually committed constitutes the authority to arrest; it is a felony until matter in excuse is shown; it authorizes the grand jury to find a true bill, and thus put the prisoner on his trial for life and death. Like the finding of stolen goods in the possession of one, he is legally regarded as the thief until he accounts for his possession: so he who of his own will, and not by command of law, commits a homicide, is legally guilty of murder until he shows that it was excusable in self-defense, or manslaughter by reason of sudden heat and passion from reasonable provocation given. The party arresting is supposed to act with knowledge of the law; he is bound, therefore, to show that the prisoner has committed the fact from which the law raises the presumption of guilt. This is what I understand by being bound to show the prisoner's
guilt in order to justify his arrest by a private person. A mere suspicion that he has done the act will not justify the arrest; the proof must show that prima facie a legal felony was committed, and that the prisoner was the perpetrator. The prisoner's excuse, although it might shield him from condemnation, does not enter into the question." It was here distinctly held that reasonable and honest belief that a felony had been committed would be no justification.
In commenting on the case of State v. Anderson, supra, this Court said in State v. Griffin, 74 S.C. 414: "It will thus be seen that it was incumbent on the person making the arrest to show the actual fact from which the law raised the presumption that a felony had been committed. He was not permitted to act merely upon information, although it might strongly tend to establish the fact from which the law inferred a felony." The law on the subject of arrest has been changed in this respect by sec. 1 of the Criminal Code, as will be seen by reference to the case last cited, but the statute has no application to one who kills in assisting another.
The case of State v. Myers, 13 S.C. MSS., which is supposed to support the appellant's view, seems to be not at all clear and we discern in it no adjudication of the point here under discussion.
We have endeavored to show the law as laid down by the Circuit Judge is firmly established. It is true, the rule may in exceptional cases work hardship; but the opposite rule would allow the innocent man who had been forced to strike in self-defense to be killed with impunity merely because appearances happened to be against him at the moment a partisan of his antagonist reached the scene of conflict. The duty seems urgent to enforce rather than relax the rule which admits of no excuse for taking human life except necessity.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.