I do not concur in the opinion of Mr. Justice Watts in this case, for the reasons which follow; and am of opinion that all of the exceptions should be overruled, the others as well as the sole one considered in the leading opinion. I think that the case is controlled by the case of State v. Jones, 130 S.E., 747, filed Nov. 10, 1925.
The defendants were indicted upon a charge of assault and battery with intent to kill and murder, and were convicted of assault and battery of a high and aggravated nature. The sentence does not appear in the record for appeal. The defendants have appealed from various exceptions which will be reported and which will be considered herein.
The facts as detailed by the witness for the State, many of which are admitted by the defendants, were as follows:
The prosecutor, Broughton, had shot a foxhound belonging to the defendant, B.C. Mims, which was prowling around his back yard and porch. On the morning of the difficulty Broughton had gone to Pinewood, S.C. in his automobile. The Mims brothers were also in the town. B. C. Mims waited at the automobile of Broughton, standing in *Page 236 the street, until Broughton came out of the bank, crossing the street toward his car. B.C. Mims accosted him and in his testimony gives this account of what happened:
"He walked into the middle of the street and waited for Mr. Broughton near some cars parked in the center of the street, one of which he presumed was Broughton's. When Broughton came out of the bank, witness called to and spoke to him and asked him, `Did you shoot one of my dogs?' Mr. Broughton said: `I don't know whose dog it was; I shot a cur.' Witness said: `No, you haven't shot any cur; you have shot one of my fox dogs. What was he doing?' Broughton replied, `Scratching at the screen wire.' Witness said, `What else?' Witness then told Mr. Broughton the dogs were his, and if they did him any harm he was willing to pay for it, but he didn't want him to shoot any more of them. Broughton then replied he would shoot any one that came into his yard, witness just as well. Witness then hit Mr. Broughton, and they clinched and fought. He was not expecting any difficulty with Mr. Broughton. If he hadn't come at witness in such a bull-dozing way it would have been no fuss."
Upon cross-examination B.C. Mims further stated:
"That he did not consider himself as good a man physically as Broughton; that he had a pair of automobile pliers, and hit him somewhere in the head; didn't know how many times he hit Mr. Broughton; he was hitting him as fast as he could, both before and after Broughton grabbed him. Witness had no intention of hurting Mr. Broughton seriously. He regarded it nothing more than a fight."
The evidence for the State further tended to show that while the fight between B.C. Mims and Broughton was going on, the defendant H.M. Mims, a brother of B.C. Mims, ran out of a nearby store, to where they were fighting, and struck Broughton in the head with handcuffs which he carried as a constable, and was restrained by bystanders from further attacking him. It was also testified to by a *Page 237 witness for the State that B.C. Mims had told him that if he found out who shot his dog he would have him to whip. Witness then asked him, "Suppose he is not your size?" Mims said, "There is a way to size a man to his size." The physician who attended Broughton testified:
"He found seven or eight rather slight wounds on Mr. Broughton's head. They were put on there by some blunt instrument. They were not serious. I put some antitetanus on them; sometimes you have tetanus from wounds like that. I wouldn't consider the wounds I found dangerous as they were; of course, if they became infected they would be dangerous."
Assuming that some or all of the exceptions may have been meritorious (which, however, is not to be considered as intimated even), if there had been the slightest ground upon which the jury could possibly have based a verdict of simple assault and battery; as I read the evidence, there was no such ground and the errors of the Court are harmless.
It appears beyond dispute, it is in fact admitted by the defendant B.C. Mims, that he was greatly provoked, intensely angered at the shooting of his foxhound, a natural but not a legal provocation; that he suspected Broughton of being the offender; that he learned of Broughton's presence in Pinewood, knew his automobile, and waited near it for Broughton; that he began the colloquy and, without the provocation even of opprobrious epithets, began the difficulty by striking him; that he had in his hand a pair of automobile pliers (certainly a formidable and dangerous weapon); that he hit Broughton "somewhere in the head, but didn't know how many times he hit Mr. Broughton, he was hitting him as fast as he could both before and after Broughton grabbed him," and only desisted when the parties were separated. Take these facts in connection with the testimony of a State's witness, quoted above, as to the threat of B.C. Mims and his statement, "there is a way to size a man to his size" (denied by B.C. Mims), the jury may well have *Page 238 concluded that B.C. Mims had prepared himself for the punishment he proposed to inflict upon the man who had shot his dog. Considering also the fact that Broughton had no weapon and was only defending himself from an attack unwarranted, I do not see how any other inference can be drawn than that the assault was without provocation, with a deadly weapon, and of a high and aggravated character; not the slightest ground for the conclusion that it was simple.
As to H.M. Mims, the jury was authorized by the evidence to find that he had run to his brother's assistance and had struck the prosecutor in the head with handcuffs. If, as has been held by this Court, an attack upon an officer of the law may be considered as a circumstance of aggravation, certainly an attack by an officer with a dangerous weapon may likewise be so considered. It was his duty to preserve the peace, not to assist in its breach.
Whatever error there may have been in the charge in reference to self-defense, it was entirely harmless, as there was not even a claim on the part of B.C. Mims that he acted in self-defense, and certainly no evidence tending to establish that fact. He began the difficulty and struck the first blow, provoked as he says by the bull-dozing manner of the prosecutor, and then proceeded to batter his head with the pliers.
The judgment of this Court should be that the judgment of the Circuit Court be affirmed.