State v. Lindsay

63 S.E. 1064, 82 S.C. 486, 1909 S.C. LEXIS 25

• Court: Supreme Court of South Carolina
• Decided: April 22, 1909
• Docket: 7175
• Status: Published

Opinions

April 22, 1909. The opinion of the Court was delivered by At the January, 1908, term of the Court of General Sessions for Greenville county, the jury convicted the defendants, Thomas Lindsay and Columbus Sims, of the murder of J.R. Moon and recommended them to the mercy of the Court. A motion for a new trial was refused.

The case is reeking with perjury on one side or the other. If the testimony of the family of the deceased be true, the defendant, Lindsay, in company with Columbus Sims, delibately commenced firing into the house of deceased, and shot him to death while he was standing on his piazza. On the other hand, the defendants introduced testimony to the effect that the deceased and his family deliberately watched the public road for their approach, and as soon as they came within range opened fire on them from several parts of the premises; that the defendant Lindsay returned the fire in self-defense, while the defendant Sims hid behind a log.

These questions are involved in the appeal: First: Was it error to exclude the testimony of Dr. D.B. Jackson as to statements made in the presence of J.R. Moon before his death as to the position of the defendants and of J.R. Moon at the time he received the fatal shot? Such declarations are clearly inadmissible, for even the declarations of the deceased himself would not have been competent. State v. Taylor, 56 S.C. 369,34 S.E., 939; State v. Mills, 79 S.C. 195, 60 S.E., 664.

Second: Was the Circuit Judge in error when he charged: "The law does permit one to kill another in self-defense, but the law is strict and rigid in applying the doctrine of self-defense, and unless the case of killing comes clearly within the law of self-defense, then the law does not excuse it, and the plea of self-defense can not excuse, unless it be clearly established. It is not required that a person pleading self-defense shall establish it beyond all reasonable doubt, but he must establish it by the preponderance of the evidence, which is the greater weight of the evidence."

In view of the sharp issue of veracity between the witnesses on the question of self-defense, we can not escape the conviction that it was prejudicial to the defendants to single out the issue of self-defense and say to the jury, the law on that issue is "strict and rigid" and that the affirmative of that issue must be "clearly established." It is true, the Judge said in the same connection that the plea must be established by the preponderance or greater weight of the evidence, but when the instructions are considered together they can have no other meaning than the law is strict and rigid in requiring the plea of self-defense to be clearly established by the preponderance of the evidence. The law is, that one who kills another is excused if he establishes the plea of self-defense by the preponderance of the evidence. While it is the duty of the Courts and juries to be resolute in rejecting the plea when not supported by a preponderance of the evidence, the Court is not at liberty to single out this plea as one which the law strictly and rigidly requires to be clearly established by the preponderance of the proof. In Sanders v. Aiken Mfg. Co., 71 S.C. 58, 61,50 S.E., 679, the instruction was: "Contributory negligence on the part of the plaintiff in order to absolve the defendant from liability must be clear and convincing." In holding this to be error, the Court said: "That such proof should be clear and convincing and, indeed, leave no room for any other inference to justify the Court in taking the case from the jury, there can be no doubt. Doolittle v. Ry. Co., 62 S.C. 130,40 S.E., 133. But there is no reason for a jury to require or seek proof more clear and convincing as to this defense than any other in which the burden is on the defendant. The rule is, that he must establish contributory negligence by the preponderance of the evidence. It is highly desirable that evidence on all issues should be clear and convincing, but it tends to the prejudice of a party for the Court to single out an issue as to which the burden of proof is on him, and instruct the jury that he must prove his contention by evidence clear and convincing." The point is not free from difficulty, but after a careful examination of the whole record, we can not feel satisfied that the instruction did not overstate the burden imposed on the defendants in making out the plea of self-defense, and was prejudicial.

The third point that there was no evidence whatever to sustain the conviction cannot be sustained as to either of the defendants. There is to be a new trial, and for that reason it would be improper to discuss the evidence.

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