State v. Workman

17 S.E. 694, 39 S.C. 151, 1893 S.C. LEXIS 120

Opinions

The opinion of the court was delivered by

Mr. Chief Justice McIver.

3 While I concur in the conclusions reached by Mr. Justice Pope upon all of the other grounds of appeal, I cannot agree with him in the view which he takes of the third and fourth grounds. The point there made, as I understand it, is that the Circuit Judge erred in declining to charge, without qualification, that it was incumbent upon the State to prove, beyond a reasonable doubt, that the defendant made the first assault or commenced the difficulty'; and the particular complaint made is that the Circuit Judge, in giving that instruction, interposed the words: “If that is a question of fact which it is essential that you pass upon,” the appellant contending that those words should not have been interposed, but that the jury should have been told, without qualification, that it was incumbent upon the State to prove, beyond a reasonable doubt, that the defendant made the first assault or commenced the difficulty.

To sustain this position, it would be necessary to assume that in no case could a defendant be convicted of murder, or even of manslaughter, unless the jury were satisfied beyond a reasonable doubt that the accused made the first assault or commenced the difficulty. Such an assumption is not, in my opinion, well founded. While it is quite true that in many cases the question as to who made the first assault or commenced the difficulty is a material inquiry, yet it is not so in all cases. For example, besides other illustrations which might be used, if a trivial assault is made upon one person by another, and the person so assailed draws a deadly weapon and uses it with fatal effect, there can be no doubt that he would be guilty of manslaughter, at least; and the fact that the deceased committed the first assault would be wholly insufficient to reduce the case to one of self-defence. In such a case, therefore, the question as to who committed the first assault would not be material. Hence I do not think it would be correct to say that in every case the jury must be satisfied beyond a reasonable doubt that the accused committed the first assault or commenced the difficulty, before he can be convicted of any offence; but that the true rule is that, where the question as to who commenced the difficulty is a material inquiry, it is necessary that the jury should be satisfied beyond a reasonable doubt that the accused was the aggressor before he can be convicted, just as they must be satisfied of every other material fact in the case. It seems to me that the charge of the Circuit Judge was precisely in accordance with this rule, and, therefore, not erroneous. Whether the facts of this particular case were such as to make the inquiry whether the accused was the aggressor material, was a question for the jury, which the Circuit Judge had no right to consider, and hence they were correctly instructed, that if they believed that such facts rendered it necessary to inquire who was the aggressor, then the State was bound to prove beyond a reasonable doubt that the defendant was the aggressor. I think, therefore, that the judgment of the Circuit Court should be affirmed, and this being the opinion of the majority,

The judgment of this court is, that the judgment of the Circuit Court be affirmed, and that the case be remanded to that court for the purpose of having a new day assigned for the execution of the sentence heretofore imposed.

Mr. Justice McGowan concurred.