The opinion of the Court was delivered by
Mr. Acting Justice Purdy.
On January 14, 1925, the appellant, who is a white man, was charged with killing and murdering Preston Branch, a Negro! He was convicted of manslaughter, and this appeal is from the judgment pronounced upon the sentence. The testimony, both as to the acts concerning the killing and the acts, at an earlier hour of the day, which preceded the killing, is conflicting.
The appellant, with another white man, and the deceased, with Tom Brown, another- Negro, some time during that morning met together in the road. . The testimony on the part of the State tends to show that the appellant, at his own instance, engaged in wrestling with Tom Brown, whereas the appellant claims that he met these parties in the road and that after talking with them, and after the white man who was with him had withdrawn for a short distance, both the deceased and Brown assaulted him and beat him and stamped him, leaving him unconscious.
The testimony, taken in connection with the circumstances, tends to show that the appellant was drinking, and, from the actions of all the parties concerned, the circumstances point to the conclusion that the gathering of these people at the point in question was for the purpose of obtaining liquor from some one in that neighborhood.
The defendant was carried away fronj this scene of action in a truck by another white man by the name of Ford, and was taken to the home of appellant’s father, where it appears he drank some coffee, and then went on home. Remaining at his home for a while, he took his shotgun and a number of shells and left, stating that he was going to help another white man hunt a cow. Soon afterwards he came up with the deceased, who was in a road cart with Tom Brown, and, it is claimed, a third Negro named McCoy. The other occupant or occupants of the cart left the deceased in the cart. One purporting to be an eyewitness of the
killing testified that the appellant caused the deceased to throw certain articles out of his pocket on the ground, and then told him to throw up his hands, and, this being done, the appellant shot the deceased in the throat.
The appellant, on the other hand, stated that, when he approached the deceased, the deceased reined up the mule with his left hand close to his neck, and put his right hand behind his back, and reached back in his pocket as if for a gun, and that, fearing for his life, the appellant shot the deceased with a shotgun. Appellant also stated that the .Negro Brown only was with the deceased, and that Brown jumped out of the cart and ran. Branch died on the Monday night following, or early Tuesday morning.
During the progress of the trial, it was sought to be shown in behalf of the appellant that the deceased was accustomed to carry a pistol; that he indulged in riotous conduct; and that he, with others, had been indicted in July, 1923, for creating a disturbance on the public highway by shooting off firearms.
It was sought to show also that at the November, 1923, term of Court, the deceased was indicted for the crime of burglary, in that he entered the dwelling house of the appellant with intent therein to commit a criminal assault upon the wife of the appellant, and that he was convicted and recommended to mercy, and that he was sentenced to serve a term of five years. The record is quite lengthy in setting forth what took place between the appellant’s counsel, the Solicitor, and the Court. The Court ruled out the evidence in reference to the indictments of July 16, 1923.
On attempting to get in the record in reference to the indictment for burglary, when the record was at first produced, it was contended on the part of the State that there had been an order made by Judge Smith, who presided at that trial, granting a new trial to the deceased. This order could not be found. The Clerk of Court testified that he knew that such an order had been made. At the conclu
sion of this testimony, the trial Judge permitted the record to be introduced in evidence, and this occurred (after the ruling of the Court permitting the record to be introduced).
“Mr. Graydon: I will read the record of this indictment to the jury. (Record of the indictment charging Preston Branch with burglary with intent to commit rape read to the jury.) (Same was introduced in evidence, and returned to the Clerk of Court.)”
Afterwards the order granting a new trial was found, and the Solicitor offered to let it be put in evidence without recalling the Clerk of Court to prove it — whereupon the Court intervened, saying:
“Then, if that is true, I will rule the whole thing out, and I am going to tell that jury right now to disregard that record. Rule it out — the record against this man Preston Branch for burglary.”
The attorney for the appellant, wishing to fully protect the rights of his client, with permission of the Court, sought to have a number of the witnesses testify as to the facts relating to this indictment. But the Judge ruled that, having once made the point by seeking the introduction of the record, further testimony was not necessary on that point.
The attitude of the Court in reference to this is shown in part in the examination of Sam Peak, a brother of the appellant, who appeared as a witness in his behalf:
“Q.
Is this the same boy that had trouble with Tee Peak’s wife? A. Yes, sir.
“Q. Was he tried in this Court? A. Yes, sir.
“The Solicitor: I don’t think that is relevant.
“The Court: I think it is, Mr. Solicitor. Of course, I will charge the jury the law, but anything that shows the state of mind that the defendant was in is competent within a reasonable time.
“The Solicitor: Within a reasonable time and connected with the homicide.
“Mr. Graydon: I just asked him if he was the same
Negro that had a row with the defendant’s wife. I don’t think it would make any difference if it was six years ago.
“The Court: Let it stay in.”
It will be noted that, having permitted the record in the case for burglary to be introduced and read to the jury, the trial Judge reversed his ruling, and instructed the jury to disregard it. Evidence was introduced in behalf of the defense to the effect that the deceased was of a violent and turbulent character, and that his reputation for peace and order was bad.
The defendant has appealed upon a number of exceptions. The indictment charged that the deceased was shot by the appellant on December 7, 1924, and that he then and there died. During the progress of the trial, it appeared that death did not occur until Monday night or Tuesday morning, and the counsél for appellant moved for a directed verdict upon the variance between the allegations and the proof. The Court told the Solicitor that he would permit him to amend the indictment by alleging the time of the death, which was done, and this is the ground of two of the exceptions.
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The opinion of the Court was delivered by
Mr. Acting Justice Purdy.
On January 14, 1925, the appellant, who is a white man, was charged with killing and murdering Preston Branch, a Negro! He was convicted of manslaughter, and this appeal is from the judgment pronounced upon the sentence. The testimony, both as to the acts concerning the killing and the acts, at an earlier hour of the day, which preceded the killing, is conflicting.
The appellant, with another white man, and the deceased, with Tom Brown, another- Negro, some time during that morning met together in the road. . The testimony on the part of the State tends to show that the appellant, at his own instance, engaged in wrestling with Tom Brown, whereas the appellant claims that he met these parties in the road and that after talking with them, and after the white man who was with him had withdrawn for a short distance, both the deceased and Brown assaulted him and beat him and stamped him, leaving him unconscious.
The testimony, taken in connection with the circumstances, tends to show that the appellant was drinking, and, from the actions of all the parties concerned, the circumstances point to the conclusion that the gathering of these people at the point in question was for the purpose of obtaining liquor from some one in that neighborhood.
The defendant was carried away fronj this scene of action in a truck by another white man by the name of Ford, and was taken to the home of appellant’s father, where it appears he drank some coffee, and then went on home. Remaining at his home for a while, he took his shotgun and a number of shells and left, stating that he was going to help another white man hunt a cow. Soon afterwards he came up with the deceased, who was in a road cart with Tom Brown, and, it is claimed, a third Negro named McCoy. The other occupant or occupants of the cart left the deceased in the cart. One purporting to be an eyewitness of the
killing testified that the appellant caused the deceased to throw certain articles out of his pocket on the ground, and then told him to throw up his hands, and, this being done, the appellant shot the deceased in the throat.
The appellant, on the other hand, stated that, when he approached the deceased, the deceased reined up the mule with his left hand close to his neck, and put his right hand behind his back, and reached back in his pocket as if for a gun, and that, fearing for his life, the appellant shot the deceased with a shotgun. Appellant also stated that the .Negro Brown only was with the deceased, and that Brown jumped out of the cart and ran. Branch died on the Monday night following, or early Tuesday morning.
During the progress of the trial, it was sought to be shown in behalf of the appellant that the deceased was accustomed to carry a pistol; that he indulged in riotous conduct; and that he, with others, had been indicted in July, 1923, for creating a disturbance on the public highway by shooting off firearms.
It was sought to show also that at the November, 1923, term of Court, the deceased was indicted for the crime of burglary, in that he entered the dwelling house of the appellant with intent therein to commit a criminal assault upon the wife of the appellant, and that he was convicted and recommended to mercy, and that he was sentenced to serve a term of five years. The record is quite lengthy in setting forth what took place between the appellant’s counsel, the Solicitor, and the Court. The Court ruled out the evidence in reference to the indictments of July 16, 1923.
On attempting to get in the record in reference to the indictment for burglary, when the record was at first produced, it was contended on the part of the State that there had been an order made by Judge Smith, who presided at that trial, granting a new trial to the deceased. This order could not be found. The Clerk of Court testified that he knew that such an order had been made. At the conclu
sion of this testimony, the trial Judge permitted the record to be introduced in evidence, and this occurred (after the ruling of the Court permitting the record to be introduced).
“Mr. Graydon: I will read the record of this indictment to the jury. (Record of the indictment charging Preston Branch with burglary with intent to commit rape read to the jury.) (Same was introduced in evidence, and returned to the Clerk of Court.)”
Afterwards the order granting a new trial was found, and the Solicitor offered to let it be put in evidence without recalling the Clerk of Court to prove it — whereupon the Court intervened, saying:
“Then, if that is true, I will rule the whole thing out, and I am going to tell that jury right now to disregard that record. Rule it out — the record against this man Preston Branch for burglary.”
The attorney for the appellant, wishing to fully protect the rights of his client, with permission of the Court, sought to have a number of the witnesses testify as to the facts relating to this indictment. But the Judge ruled that, having once made the point by seeking the introduction of the record, further testimony was not necessary on that point.
The attitude of the Court in reference to this is shown in part in the examination of Sam Peak, a brother of the appellant, who appeared as a witness in his behalf:
“Q.
Is this the same boy that had trouble with Tee Peak’s wife? A. Yes, sir.
“Q. Was he tried in this Court? A. Yes, sir.
“The Solicitor: I don’t think that is relevant.
“The Court: I think it is, Mr. Solicitor. Of course, I will charge the jury the law, but anything that shows the state of mind that the defendant was in is competent within a reasonable time.
“The Solicitor: Within a reasonable time and connected with the homicide.
“Mr. Graydon: I just asked him if he was the same
Negro that had a row with the defendant’s wife. I don’t think it would make any difference if it was six years ago.
“The Court: Let it stay in.”
It will be noted that, having permitted the record in the case for burglary to be introduced and read to the jury, the trial Judge reversed his ruling, and instructed the jury to disregard it. Evidence was introduced in behalf of the defense to the effect that the deceased was of a violent and turbulent character, and that his reputation for peace and order was bad.
The defendant has appealed upon a number of exceptions. The indictment charged that the deceased was shot by the appellant on December 7, 1924, and that he then and there died. During the progress of the trial, it appeared that death did not occur until Monday night or Tuesday morning, and the counsél for appellant moved for a directed verdict upon the variance between the allegations and the proof. The Court told the Solicitor that he would permit him to amend the indictment by alleging the time of the death, which was done, and this is the ground of two of the exceptions.
The exceptions have been grouped in the argument of the appellant, and we will follow that grouping. Considering Exceptions 1, 2 and 9: These allege error in excluding.testimony to the effect that the deceased and others had been arrested some time prior to the time of the homicide for taking part in a riot and shooting on the public highway.
“The rule is that evidence of other specific instances of violence on the part of the deceased are not admissible, unless they were directed against the defendant, or, if directed towards others, were so closely connected in point of time or occasion with the homicide as reasonably to- indicate the state of the mind of the deceased at the time of the homicide, or to produce reasonable apprehension of great bodily harm. A similar question in reference to the conduct of' the defendant has recently been considered by this Court in the
case of
State v. Gregory
[127 S. C., 87] ; 120 S. E., 499, in which it is declared that the conduct, actions,, and general demeanor of the accused immediately before the killing is admissible to show that he was in a vicious humor, as bearing upon the great issue in the case, his frame of mind at the time of the homicide.
State v. Miller,
73 S. C., 280; 53 S. E., 426; 114 Am. St. Rep., 82.
State v. Rowell,
75 S. C., 494 ; 56 S. E., 23; 4 Elliott, Ev., § 3029. The same rule should apply on behalf of the accused in establishing the temper of the deceased at the time of the fatal encounter.
State v. Dean, 72
S. C., 74; 51 S. E., 524.
State v. Andrews,
73 S. C., 257; 53 S. E., 423.
State v. Springfield,
86 S. C., 323; 68 S. E., 563.”
State v. Hill,
129 S. C., 168; 123 S. E., 817.
It is difficult to fix any time within which such testimony shall be admitted or excluded. This has to be left largely to the discretion of the trial Judge, and his discretion will not be disturbed, unless it is manifest that there has been an abuse of his discretion to the prejudice of the accused, and this Court is of the opinion that no such abuse of discretion has been here shown, and these exceptions are overruled.
Exceptions 3 and 4 relate to permitting the amendment to- the indictment. The indictment was free from fault in the first instance, and did not need any amendment. Any date could have been alleged prior to the time of giving out the bill to the grand jury, and the true date could have been proven. Therefore, the amendment in no way changed the charge against the appellant. “It is not necessary to prove the precise day or even year laid in the indictment, except where time enters into the nature of the offense, or is made part of the description of it.”
State v. Branham,
13 S. C., 389. These exceptions are overruled.
Exceptions 7, 10, and 11 allege error in the charge of the jury, first, in charging the jury that “the defendant must have been without fault in bringing
.about the difficulty. I mean the immediate difficulty; that which results in death.” An examination of the charge of "his Honor in its entirety will show that these exceptions cannot be.sustained. It was the immediate difficulty which "brought about the death of the deceased. His Honor fully -charged the jury as to the rights of the appellant, charging -clearly and fully the law in reference to renewing a difficulty after one had withdrawn from it, and, in fact, delivered .a clear and full charge, covering the whole case, without reversible error, and these exceptions are overruled.
Exceptions 5, 6, and 8 allege error in the refusal to allow the introduction of the record for burglary. As stated, this indictment was found at the November, 1923, term of Court, .and the defendant was tried and convicted, and a new trial was granted. This was more than one year before the time of the commission of the homicide. Counsel for appellant ■contends in support of these exceptions that specific acts of violence against the defendant by the deceased are always admissible to show the state of mind of the deceased, as bearing ■on the question of self-defense, and quotes from the case of
State v. Stockman,
82 S. C., 388; 64 S. E., 595; 129 Am. St. Rep., 888, as follows:
“Where there is some evidence tending to support a plea of self-defense in a trial for homicide, it is competent, for the purpose of showing that the deceased was the aggressor, to introduce evidence reasonably tending to show that deceased had hostile feelings towards defendant at the time of the encounter, such as former threats to injure, quarrels or difficulties, assaults and the like.”
This principle is announced in
State v. Hill, supra,
and the only difficulty is in the application of the principle announced. The trial Judge understood the rule, and endeavored to apply it, for, he said in passing on the testimony of Tee Peak, “I will charge the jury the law by anything that shows the state of mind that the defendant was in is competent within a reasonable time.”
By excluding the testimony, the trial Judge held, in effect, that this charge against the deceased was not sufficiently connected in time and circumstances to be submitted as evidence to the jury, and there was no abuse of discretion on his part in so holding, and these exceptions are overruled. Besides, the record was put in evidence and read to the jury. As to what effect this may have had on the minds of the jury although told to disregard it, we express no opinion. The jury certainly had every opportunity, from the nature of the questions asked and the ruling of his Honor, to have lodged in their minds-every fact and circumstance connected with the conduct of the deceased towards the defendant and his wife.
From the testimony, the jury could view this case in two aspects, with reference to the appellant, as having, not long prior to the time of the homicide, engaged in a drunken bout with the deceased and one Tom Brown, or as having been set upon and beaten by the deceased and one Tom Brown. In any aspect of the case, the jury might have concluded, and from their verdict apparently did conclude, that as the result of what took place on the road not long before the homicide, the appellant went home, and under the pretext of hunting for a cow, got his gun and took a number of shells, and went hunting for the deceased, and killed him; and by their verdict they found that the appellant had not had time within which to cool, and, while-smarting under what had recently taken place, took the life of the deceased.
The record discloses such a state of facts as warrants the conviction of the appellant, and there was not any reversible error on the part of his Honor in the conduct of the case, or in his charge.
Let the charge of his Honor be reported.
The judgment is affirmed.
Messrs. Justices Watts, Cothran, BeEase and Stabler concur.
Mr. Chiee Justice Gary did not participate.