No argument furnished Reporter by either side.
An opinion was first handed down in this case on February 28, 1906, but on petition for rehearing, on May 26, 1906, are argument was ordered at the April Term, 1906.
December 10, 1906. The opinion of the Court was delivered by William P. Rowell was tried at the March, 1905, term of the Court of General Sessions of Florence County, before Judge Klugh and a jury, on an indictment for the murder of Joseph C. Blount, and for unlawfully carrying about his person a pistol of unlawful length and weight. He was convicted of manslaughter with a recommendation to mercy, but found not guilty of the charge of carrying a concealed weapon. He was sentenced to five years imprisonment in the penitentiary. Upon due notice, an appeal was taken from the rulings of the Court, the verdict and the sentence.
The history of the alleged crime is about as follows: The defendant was drinking and was more or less under the influence of intoxicating liquor on the afternoon and evening of the 16th of December, 1904. About half an hour before the alleged homicide, two gentlemen passed along on the sidewalk where the defendant was leaning against a post. He interrupted the conversation between Mr. Speed and Mr. O'Bryan, by remarking after one of their remarks to each other. "It is a damn lie and I don't believe a word of it; and you are going to the blind tiger to get a drink." Mr. Speed struck a match to see the face of the man speaking. This occurred about forty yards distant from the place of the homicide. This testimony was objected to, but was admitted. Mr. W.T. Rouse testified that about four o'clock, Rowell came to his store and had been drinking. What else occurred in the conversation was ruled out by the Circuit Judge as immaterial. About eight o'clock, Rowell *Page 507 came upon the scene of the homicide and asked if any one had seen the deceased, Blount. Upon being told by a bystander that Mr. Blount was there, Rowell sought out Blount and charged him with having drunk that evening liquor from a blind tiger. This was denied by Mr. Blount, who was then informed by Mr. Rowell that "he need not lie about it." Mr. Blount walked off to have a conversation with another gentleman, a Mr. Jeffords, and after finishing the conversation, stepped back to where Mr. Rowell was standing. The conversation as to the alleged drink at the blind tiger by Mr. Blount was resumed, and the lie was passed by both parties. Mr. Blount seized a stick from the hands of Mr. Rowell. Mr. Rowell drew his pistol; the blow from the stick in Mr. Blount's hands across the head of Rowell and the firing of the pistol by Rowell upon Blount was simultaneous. Mr. Blount fell dead, Mr. Rowell was bleeding, and was instantly arrested by the policeman of the city of Florence.
The exceptions will be reported. We will now pass upon them in their order.
1. We think the Circuit Judge committed no error. It is always well to let the jury understand what was the condition of the accused as shown by his conduct and language preceding the deadly encounter. If the defendant was drunk, quarrelsome, insulting, these facts are relevant. It is always to be desired that the jury should understand how the accused was deporting himself immediately preceding the homicide. In this case, the Circuit Judge was very careful to exclude any testimony which was not nearly immediately connected with the homicide, and that which was admitted by him only preceded the homicide, and by half hour. The Circuit Judge, if anything, was too careful in denying to the jury the benefit of the testimony offered, which preceded the difficulty by four hours. We must, therefore, overrule this exception.
2. When the witness for the defense, Leon D. Morris, was upon the stand, he was asked whether he knew if it was *Page 508 the habit of Mr. Blount to go armed, the witness replied, "Yes, sir." After this answer the solicitor objected, and the Court held that the testimony was incompetent. No effort was made to strike out the testimony already given before objection was made, and hence we see no error was committed by the Judge. Especially as Mr. Rowell, when examined on his own motion, stated that he could not say that he had ever seen Mr. Blount with a pistol, but supposes, being an officer of the railroad, he did carry a pistol. He could not say of his own knowledge that Mr. Blount did have a pistol. This exception is overruled.
3. We do not see that the Circuit Judge erred in allowing the solicitor to cross-examine John L. Rogers as to what statements he made in writing subscribed by him pertaining to the homicide The paper was not introduced in evidence by either side, the State or the defence, but the solicitor on said cross-examination examined the witness, asking him if he had not made such statements, some of which he admitted and some he denied. The defendant thought he should be allowed to see this paper. This exception is overruled.
4. This exception relates to the cross-examination by the State of Mr. W.B. Rowell, after he had testified in his own behalf. Of course, there are certain exceptions to the free cross-examination of the defense, such as the witness not being bound to incriminate himself, but with these exceptions a defendant, who offers himself as his own witness. is subject to a full cross-examination by the State. It must be remembered that the defendant who offers himself as a witness must be expected to answer all questions propounded by the State in such cross-examination. His credibility is thus tested, and besides, in the interest of justice, he may be expected to have his memory fully tested. This exception is overruled.
5. This exception relates to the alleged error of the Circuit Judge in causing the jury to return to the jury room after they had been out twice, with a statement that they *Page 509 could not agree, in violation of section 2449 of the Civil Statute Law of the State, volume 1, which is as follows: "When a jury, after due and thorough deliberation upon any cause, return into Court without having agreed upon a verdict, the Court may state anew the evidence, or any part of it, and explain to them anew the law applicable to the case, and may send them out for further deliberation; but if they return a second time without having agreed upon a verdict, they shall not be sent out again without their own consent, unless they shall ask from the Court some further explanation of the law." The Court, in the case of the State v. Kelly, 45 S.C. 666,24 S.E., 45, has considered this statute and the duty of the Judge and jury under the same. In the case cited, the jury had returned to the court room on two occasions, notifying the Court of their inability to agree and requesting the Court, through the foreman, as follows: "We have been in the room twenty-four hours and can't agree," and these words were uttered after the jury had been ordered to their room a third time.
A very different state of affairs is presented in the case at bar, for here there was no indication of any unwillingness on the part of the jury to retire a third time. Indeed, members of the jury requested of the presiding Judge that he would state anew the law on self-defense, and the presiding that this is a very delicate duty imposed upon the Circuit Judge, but we hold that there must be some indication of unwillingness on the part of the jury to again retire to agree upon the verdict, and they must not ask for a charge by the Judge upon any matters committed to the jury, if the jury insist upon their right to be discharged. Of course, there must be no coercion practiced upon the jury to force them to a verdict, and the language of the Circuit Judge shows in this instance how anxious he was that such coercion should not take place. This exception is overruled. *Page 510
6. The sixth exception alleges the Circuit Judge erred in charging that the defendant would not be without fault in bringing on the difficulty, and, therefore, could not avail himself of the plea of self-defense, if he used any opprobrious words or was guilty of any breach of decorum which resulted in an attack upon him. This was error. The true rule is that the plea of self-defense is not available to one who uses language so opprobrious that a reasonable man would expect it to bring on a physical encounter, and which did actually contribute to bringing it on. The defendant's testimony as to the language used by him, and his manner in using it, made an issue of fact as to whether he had just reason to suppose his language to the deceased would probably result in a personal difficulty. This exception must, therefore, be sustained.
7. The error here complained of does not seem to us real. It was intended to emphasize the duty of a man to avoid the taking of human life, where it is possible to prevent it, even to the extent of fleeing from one's adversary. When a Judge realizes what is meant by taking human life, he ought to prevent such direful result by all the words he can use. We might say, in carefully looking over the testimony in this case and also reading the charge in this case, that this is an abstract rule of duty and was not strictly involved by the conduct of these parties, the deceased and the defendant. This exception is overruled.
8. This exception relates to the Circuit Judge allowing jurors to approach him while the jury was in the court room and to speak to him in a whisper while on the bench, in the presence of the jurors and of the attorneys on each side, which the Circuit Judge at once announced publicly. There is no doubt that the greatest care in a Circuit Judge is required so that no possible doubt could exist as to what passes between him and a juror. It is far better that the juror should be required by the Judge to declare openly what information he would seek from him, and thus avoid any possible misconstruction. But the Judge in *Page 511 this case endeavored at once to impart the utmost publicity to what the juror said to him privately, by himself stating what had been asked. There was no hesitation and no delay by Judge Klugh in making known what the juror had asked him, for he gave his reply openly in the presence of all concerned. Under these circumstances, we feel that there had been no interference with the cause of justice in this matter. This exception is overruled.
9. This exception relates to the refusal of the Circuit Judge to grant a new trial on the affidavit of the juror, Eli Hatchell, to the effect that during the trial of the case, and while he was at the Central Hotel that night in charge of Constable Matthews, a bailiff of the Court talked about the case in his presence, and said that the defendant should be punished; and in holding that there was nothing before him to show that the verdict was influenced by it. It may be the Court should have punished this bailiff for his conduct, and that Eli Hatchell, the juror, should have informed the Court of the bailiff's conduct, but we do not think there was any such interference with the jury as to require a new trial. Objections to verdicts on the ground that one or more of the jurors has been subjected to outside influences must be looked at in a practical way and every case decided on its own facts. Those cases are strongest in which the juror has lent himself to such influence as signified a willingness to receive advice or favors. Those, however, who are selected to serve as jurors must be considered to have personal firmness and conviction, and not be presumed to bend to every wind of opinion that blows around their ears. Where, without any misconduct on the part of the juror or the constable who had him in charge, an opinion was imprudently volunteered in the presence of the juror by another constable, we do not think it would be reasonable to reach the decision that the conclusion of this juror and the whole panel was influenced by it.
The tenth, eleventh and twelfth exceptions have been disposed of in what has already been said. *Page 512
The sixth exception is sustained, and all of the others are overruled.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed and the cause remanded for a new trial.