State v. Petsch

20 S.E. 993, 43 S.C. 132, 1895 S.C. LEXIS 147

• Court: Supreme Court of South Carolina
• Decided: February 18, 1895
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Chief Justice MoIter.

Under an indictment for the murder of J. H. Rickies, jr., the defendant was tried and convicted of manslaughter, and from thejudgment rendered appeals upon numerous exceptions. The circumstances immediately attending the. homicide may be thus briefly stated: On the evening when the deceased was shot, he had sent by a servant a bill against the prisoner for collection, which was returned unpaid, with an exceedingly offensive and dirty message from the prisoner to the deceased. When the message was delivered, the deceased said: “All right, then I will see him in the morning or to-night.” Shortly afterwards the prisoner left his house, and while walking on the sidewalk on his side of the street, he was approached by the deceased, coming from his place on the other side of the street, and when he got within about fourteen feet of the prisoner, the deceased was shot by the prisoner, inflicting the fatal wound from which death ensued in a very few days. None of the other witnesses heard any words pass between the parties, but the prisoner, in his testimony, said: “The first and only words I heard were, ‘What in, the hell’” — and before the sentence was concluded, the pistol was fired. The prisoner also testified that the deceased when he approached him “was walking tolerably rapidly, with his hand in this position (indicates with hand at right hip pocket).”

The exceptions are twenty in number, but as the first, twelfth, thirteenth, and fourteenth were very properly abandoned at the hearing, they need not be further noticed. The remaining exceptions may be divided into two general classes: first, those which impute error to the Circuit Judge in his rulings as to the admissibility of testimony; second, those imputing errors of omission and commission in his charge to the jury.

1 The fifteenth exception alleges error, “in refusing to strike out of the alleged dying declaration all after the word ‘die’ and before the word ‘it;’ and further erred in striking out all after the word ‘shooting’ up to the word ‘it,’ thus changing the whole tenor of the declaration, and misleading the jury.” For a proper understanding of this exception, it will be necessary to set out the declaration, which was in writing, as it read when first offered in evidence, as well as to state what occurred in the court below when the declaration was first offered. The following is a copy of the paper referred to: 11 Dying declaration of the deceased, J. H. Bieldes, jr. Personally appeared before me, J. H. Rickies, jr., who being told that he was in a dyiug condition, and realizing the same, makes the following statement, to wit: My name is J. H. Rickies, jr.; I am twenty-seven years of age; I was shot yesterday afternoon, about 8 o’clock, by a man by the name of Petsch, who works for Cohen & Triest. I know that my condition is hopeless, and am fully aware that my time is short; and realizing that I am about to die, (I will state the cause and occurrence of the shooting.) [Petsch owed me a bill in the sum of $5.24; I presented the bill to him two weeks ago; he sent me word that I muse send the bill in nine days time; that last night I sent the bill to him; I received this answer from him, that I must take the bill and stick it up my God damn ass. I hate to repeat such words, but that is the message I received from him. I said I would see him about it.] I walked to the door of my grocery store, and saw Mr. Petsch coming along the opposite side of the street. I stepped out of my store and went across the street. I stepped upon the sidewalk about fifteen feet in front of him, and before I could say one word to him, he drew his pistol and shot me. I was in my shirt sleeves, and had no weapon of any kind upon me. As soon as I was shot in my chest, I turned and walked over to my store. After shooting, Petsch turned and ran towards his house. I made no attempt to strike him — I was not near enough to strike him if I had wished to. Neither of us said a word; I did not have a chance to say anything to him, for he shot me as soon as he spied me.” The following colloquy passed between the court and counsel when this dying declaration was offered in evidence: Counsel for prisoner moved to strike out of the dying declaration all after the words “I am about to die” down to the word “it.” The court held that the declaration is relevant to the word “shooting,” aud all after that word down to the word “it” is inadmissible, and all following the word “it” is admissible, and to that extent the motion to strike out was sustained. To make this more plain, we have enclosed the words which counsel moved to strike out in parenthesis, and have enclosed in brackets the words which the court held should be stricken out. Upon the announcement of the ruling' of the court, counsel for the prisoner excepted, and also objected to that portion indicated by the court being stricken out, as he had made no motion to that effect. The court then said: “If the defendant’s counsel desires any portion of this declaration held by the court as inadmissible, or withdraws his objection to it, it will be admitted, and the objection not having been withdrawn, the portion indicated as irrelevant will be stricken out.” Thereupon counsel for prisoner said: “My position is, that leaving it in the shape my friend desires it, it is misleading. I don’t want to be placed in a position that by saying so I can get in a lot of irrelevant testimony.” The solicitor then offered “to exclude any part of the testimony which is irrelevant, or leave ic all in, as counsel for the defence prefers.” No response to this offer having been made, the court, after cautioning the jury not to allow' defendant’s cause to be prejudiced by anything that had been said, directed the dying declaration to be read, omitting such portions thereof as had been stricken out as irrelevant. It will thus be seen that the question presented by this exception is not whether any portions of the declaration should have been stricken out, for the offer of the solicitor to allow it all to go in was not excepted to, but the question is whether the Circuit Judge erred in refusing to strike out all of the words mentioned in defendant’s motion, aud in holding that some of those words, to wit: “I will state the cause and occurrence of the shooting,” should not be stricken out.

It seems to us that there was no error on the part of the Circuit Judge in refusing to strike out those words, for they are just such words as are appropriate to a dying declaration. Indeed, if there was any error on the part of the Circuit Judge at all, we are inclined to think that it was in striking out any portion of the declaration, as it is at least doubtful, under the case of State v. Terrell, 12 Rich., 231, recognized and followed in the ease of State v. Belton, 24 S. C., 189, whether the whole declaration was not competent; for the word which defendant’s cou nsel moved to strike out, as well as those which were stricken out, related to the circumstances immediately preceding the homicide, and were, doubtless, the immediate cause of the fatal difficulty. In addition to this, we may add that, under the case of State v. Workman, 15 S. C., at page 545, recognized and followed in State v. Dodson, 16 S. C., at page 460, it may well be questioned whether a motion to strike out of a dying declaration such portions thereof as may be supposed to be objectionable, is proper, and whether the better practice is not to move the Circuit Judge to instruct the jury to disregard such portions as may, for any cause, be deemed objectionable.

The case of State v. Talbert, 41 S. C., 526, cited by counsel for appellant, is not in conflict with this view; for there no motion to strike out was made, and the court was not called upon to decide, and did not decide, any thing upon the subject. It was simply stated that in that case no objection to the dying declaration, on account of its contents, was made when it was offered, and that “there was no motion to suppress or strike out” that portion of the declaration which referred to a difficulty which had occurred between the parties about six months previous to the homicide. But in this case no such question is presented, and is not to-be regarded as decided; for the only question here is whether the Circuit Judge erred in refusing to strike out of the dying declaration all those words which defendant’s counsel moved to 'strike out. The fifteenth exception must be overruled.

2 The sixteenth exception imputes error to the Circuit Judge in admitting the testimony of Laura Petsch, that she was the wife of defendant, because the same was irrelevant and not in reply. In the first place, the “Case” does not show that any objection was made to this testimony when it was offered, and that is sufficient to dispose of this exception. Besides, there is nothing more common than to ask a witness when offered, either in chief or in reply, what relation he bears to the party for or against whom he is offered as a witness, and we can conceive of no valid objection to such a question even if taken in time. This exception must also be overruled.

3 Theseventeenth and eighteenth exceptions may be considered together, as they both impute error to the Circuit Judge in permitting the witness, Laura Petsch, to testify in reply as to what passed between her and the defendant when he left his house immediately before the homicide occurred, upon the ground that such testimony was irrelevant and not in reply. Inasmuch as the defendant when on the stand as a witness had given his version of what occurred between himself and this witness, just before he left his house, it is difficult to conceive of any good reason why this witness was not competent, in reply, to give her version. These exceptions must be overruled.

4 The nineteenth exception imputes error to the Circuit Judge in refusing to permit the defendant while on the stand to answer the question why he did not pay the bill when it was presented to him on the evening of the homicide by the witness Brown. In the first place, the “Case” does not show that the Circuit Judge made any such ruling; for while it does show that the question was objected to, it does not show that any ruling was made in response to the objection, as the counsel examining defendant proceeded at once to propound another question. But waiving this, and assuming that the answer to the question was ruled out, we see no error in such ruling. What was defendant’s reason for failing or refusing to pay the bill was wholly immaterial to the case. It is very manifest that it had nothing to do with bringing about the difficulty which resulted in the death of the deceased, for the defendant had just testified that the bill had been several times before presented, and no trouble had arisen. It is equally manifest that the real cause of the trouble was the very rude and offensive message sent by the defendant to the deceased just before the homicide occurred. This exception must also be overruled.

5 The twentieth exception complains of error on the part of the Circuit Judge in refusing to allow the witness, Ellen Bennett, to reply to the following question: “Did he (Rickies) offer Willie Brown anything to watch for Mr. Petsch?” it being claimed that such testimony was relevant for two reasons: 1st, for the purpose of impeaching the testimony of the witness Brown; 2d, for the purpose of showing the animus of deceased on leaving his store just prior to the homicide. Here again- the “Case” fails to show that the judge refused to allow the witness to answer the question. Besides this, it is quite manifest from a brief extract taken from the testimony of the witness, Ellen Bennett, as set out in the “Case,” to which no objection was interposed, that both of these objects were attained. This witness having testified that she was in the store of the deceased when Willie Brown brought the offensive message from the defendant, proceeded as follows: “Did Mr. Rickies say anything to Willie Brown? A. He told him to see when Mr. Petsch passed, and to call him, and he said if Mr. Petsch owned those words he had sent to him, he would beat him. Q. Did he offer Willie Brown anything to watch for Mr. Petsch? (Objected to.) Q. Did Mr. Rickies say anything more? A. I did not hear him say anything more.” How as Willie .Brown had testified that he was not told to watch for Petsch, this testimony, received without objection, served the purpose of contradicting Brown just as well, if not better, than if Ellen Bennett had answered the only one of these questions objected to; especially as she also testified that she did not hear Rickies say anything more, and as she also testified that she heard Rickies express his intention to beat Petsch, “if he owned those words he had sent him.” This was quite sufficient to show the purpose with which deceased went to meet the defendant. So that in any view of the matter this exception cannot be sustained.

6 We proceed next to the consideration of the several exceptions to the judge’s charge to the jury. It will be well to state first certain propositions in reference to this matter, which are so well settled as to need no citation of authority to support them. First, the charge must be considered as a whole, and not by extracts isolated from the context. Second, the fact that the jury are not charged in the language of the request constitutes no objection to the charge, provided the proposition of law contained in the request, if correct and applicable, is given to the jury in language chosen by the judge. Third, if any request contains both good and bad law, the request may properly be refused, as it is not the duty of the judge to separate the good from the bad. It seems to us that the charge of his honor, Judge Witherspoon, which should be incorporated in the report of the case, looked at it in the light of these well settled propositions, is so wholly unexceptionable as to furnish its own vindication from the errors imputed to it.

7 Taking up these exceptions in detail, the second exception complains of error in refusing to charge defendant’s sixth request, which should be incorporated in the report of the case, as well as all the other exceptions to refusals of requests to charge, as they are too long to be inserted here. The point of this exception seems to be that the prisoner was not called upon to wait until actually struck, and that he was not required to show that there was no other possible means of escape except to kill his assailant. It seems to us that both of these points were fully met when the jury were instructed that the accused had only to wait until his assailant made some overt act or demonstration, made some assault, necessarily implied that he was not bound to wait until actually struck; and when the jury were also told that where a party assaulted, and the party upon whom the assault is committed is without fault in bringing on the difficulty, he is not compelled to run, but he must avoid the necessity of killing his assailant, if he can reasonably and safely do so, necessarily implied that he was not bound to show that there was no other possible means of escape except to kill his adversary. Indeed, this exception, like all of the others imputing errors in refusing to charge as requested, is based really upon the ground that the judge did not use the language of the requests, but saw fit to use his own language in instructing the jury as to the points of law to which his attention was called by the requests to charge.

8 The third exception imputes error in refusing to charge as set forth in defendant’s seventh request. This request could not properly have been complied with, for the reason that the judge would, by adopting the language of that request, have expressed his opinion as to the effect of the testimony as to the violent character of the deceased. If the request had been simply that the testimony as to the violent character of the deceased should be considered by the jury, and given such weight as seemed to the jury proper, the request would probably have been complied with.

The fourth exception imputes error in the refusal of defendant’s eighth request to charge. That request is also amenable to the same objection. In addition to this, the jury were instructed, though not in the language of the request, which could not properly be adopted, that a person accused of crime had a right to offer evidence of his good character, which, with all the other facts in the case, the jury were required to take into consideration in determining whether the guilt of the accused had been established beyond a reasonable doubt. What more could properly have been required, we are at a loss to conceive.

9 The fifth exception complains of error in refusing defendant’s ninth request to charge. The gravamen of this complaint seems to be that there was error in failing to instruct the jury that the accused might safely act upon the “appearances” as they were presented to him at the time, although it might turn out afterwards that such appearances were deceptive, and that, in fact, there was no real danger. In view of the fact that the jury were distinctly instructed as follows: “But if the appearances to him at the time were such that he could not reasonably and safely avoid taking human life, and a man of ordinary reason and firmness would have arrived at the same conclusion, then it was not necessary for him to go any further,” we see no foundation for the complaint made by this exception.

10 The sixth exception assigns error in refusing the tenth request of the defendant. This request called upon the Circuit Judge to instruct the jury that while the defendant was not bound to establish his plea of self-defence beyond a reasonable doubt, but only by the preponderance of the evidence, yet on the whole ease the jury must be satisfied beyond a reasonable doubt of the guilt of the accused, otherwise they must acquit. And in this connection the eighth exception, based upon an alleged refusal to charge defendant’s fourteenth request, may also be considered, as they both complain of error in failing to instruct the jury as to the necessity for the State to prove its case beyond all reasonable doubt. In view of the fact that the Circuit Judge throughout his charge time and again instructed the jury that it was,incumbent upon the State to prove the guilt of the accused beyond all reasonable doubt, and that it was not incumbent upon the accused to establish his plea of self-defence beyond all reasonable doubt, but only by the preponderance of the evidence, we are unable to perceive any possible ground for either of these exceptions.

11 The seventh exception imputes error in refusing defendant’s thirteenth request, which relates to uncommunicated threats. Inasmuch as the most, if not all, of the threats made by the deceased against the prisoner were shown to have been communicated to the prisoner, and he himself testified that he shot at the time he did, because of the threats he had heard, it is difficult to conceive what bearing the uucotnmunicated threats (if there were any) could have upon the case.

12 The ninth exception complains of error in refusing to charge defendant’s sixteenth request, to the effect that if the deceased was shown to be “a person of violent habits, revengeful or notoriously a bad man,” the law presumes that his character was known to defendant, whether the proposition, as presented in that request, could be sustained, without some further qualification, may admit of question; but we need not consider that now, for in view of the fact that the prisoner had testified that the violent character of the deceased was known to him, there was no necessity or room for any presumption.

13 The tenth exception imputes error to the Circuit Judge in charging on the facts, in the passage extracted from the charge and made the basis of this exception, which should be incorporated in the report of the case. A careful examination of this passage fails to show that the Circuit Judge expressed or even intimated any opinion whatever as to a single fact in the case. On the contrary, it was nothing more than a very common and very proper admonition to the jury that they were not to be actuated by any feeling of sentiments, but their duty was simply to apply the facts as found by them to the law as laid down by the court, and in this there was no error.

14 The eleventh exception complains of error in that portion of the charge, copied in that exception, which should appear in the report of the case. It seems to us that the passage there quoted from the charge lays down the law applicable to the plea of self-defence correctly, and is fully sustained by the following cases: State v. Beckham, 24 S. C., 283, State v. Wyse, 33 S. C., 582, and other cases which might be cited. As was said in the case last cited: “The plea of self-defence rests upon the idea of necessity — a legal necessity— that is, such a necessity as in the eye of the law will excuse one for so grave an act as the taking of human life. Hence it must be a necessity which is not brought about by the fault of the accused.”

After having thus gone over the exceptions, we again carefully examined the charge of the Circuit Judge as a whole, and we must say that we think the law applicable to the case was fully, fairly, and correctly laid down to the jury, and hence none of the exceptions to the charge can be sustained.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.