March 15, 1913. The opinion of the Court was delivered by The defendants were tried before Judge Ernest Gary, and a jury, at summer term of Court of General Sessions for Kershaw county, 1912, on a charge of assault and battery, with intent to kill, the indictment alleging that both defendants shot B.A. Bowen with a loaded shotgun. The defendants' plea was "not guilty," and Sadie Moody, in the trial, admitted the shooting, but both defendants relied upon the plea of self-defense. Both were convicted by the jury of an assault and battery with intent to kill. A motion for a new trial was made and refused, and defendants were sentenced.
An appeal was taken, and ten exceptions taken, which question the Judge's rulings, holdings and charge as to both defendants, and the further error of submitting the charge against the defendant, Ernest Moody, to the jury and allowing the verdict as to him to stand, when the evidence failed to sustain the charge as to him beyond a reasonable doubt. These exceptions will be set out by the reporter in the report of the case.
The first exception, complains of error on the part of his Honor, the trial Judge, in permitting one of the attorneys for the prosecution to discuss the details of the fight at the ginhouse, after evidence in regard thereto had been excluded by the Judge when offered by the defendant. It is true that Mr. Justice Woods, in Horsford *Page 32 v. Carolina Glass Company, 92 S.C. 236, 75 S.E. 541, uses this language: "But when testimony manifestly incompetent and prejudicial is adduced for the purpose of having such testimony influence the jury, the party who adduces it will not be allowed to hold his verdict and assert that the Court can do nothing against the unfair advantage of having the statement before the jury, beyond striking it out and instructing the jury to disregard it. In such cases it does not lie in the mouth of the offending party to say that, although he has brought in irrelevant and prejudicial testimony, the Court cannot entirely deprive him of the benefit of it. It makes no difference that defendant's counsel did not move to strike out the testimony. Had the motion been made and granted, the plaintiff would still have had an unfair advantage of having testimony before the jury which he ought not to have offered. Justice can be satisfied only by the complete relief of a new trial. Reference to subject in argument was still more objectionable."
The use of this language was not intended to reflect upon counsel in the case, but to caution and admonish the bar that a verdict obtained under such conditions should not be allowed to stand, and that attorneys engaged in a case in their argument should confine themselves to the testimony, admitted by the Court, and not that excluded.
By reference to the testimony, in the case at bar, it will be found that the attorney for the appellants brought out in the cross-examination of R.A. Bowen, the prosecutor in the case, and the first witness examined by the State, testimony which would justify the argument on the part of the State complained of and at no time during the trial made any motion to strike it out or to have the jury disregard it until counsel for the State was addressing the jury. His Honor had declined to allow them to go into the details of the fight at the ginhouse and ruled that the particulars of this fight was incompetent and excluded it, other than to show the fact that there had been a fight there. In a case of this character, *Page 33 the defense being self-defense, the State may prove all the facts proceeding and leading up to the difficulty. State v. Thrailkill, 71 S.C. 136, 50 S.E. 551. And appellant, having brought out the testimony, and allowed it to remain in the record, has no right to complain that legitimate argument to the jury was made thereon.
As to the second exception, it cannot be sustained, as in the orderly conduct of the trials in the Court of General Sessions the grand jury have to come into Court whenever the necessity arises, whether a case is being tried or not, and in the furtherance of justice and the dispatch of business. The Judge usually suspends the trial he is engaged in to receive their findings, or to enlighten them or answer any inquiry they may make, and what he usually says to them cannot possibly affect the case being tried by the petit jury, and the petit jury understands this, and this question is settled against the appellants in the opinion of Mr. Justice Hydrick, in the case of State v.Glenn, 88 S.C. 162.
As to the third exception: "General reputation of witness for turbulence can be proved by witnesses, but particular acts of violence should be excluded," State v. Dill, 48 S.C. 249, 26 S.E. 567; State v. Thrailkill,71 S.C. 142, 50 S.E. 551.
As to the fourth exception: This is overruled under the authority of State v. Adams, 68 S.C. 420,47 S.E. 676, and also on the ground that if it were true that it would not necessarily be a reflection on his veracity.
Exceptions five, nine and ten, allege error on the part of his Honor in failing to discriminate in his charge to the jury and that there was insufficient evidence to convict the defendant, Ernest Moody. There was sufficient evidence to support the verdict of the jury that the defendant, Ernest Moody, was present, aiding, abetting, encouraging, inciting and assisting Sadie Moody. An *Page 34 inspection of the record clearly establishes this. These exceptions are overruled.
The sixth, seventh and eighth exceptions, complain of his Honor's charge to the jury. As to the sixth, it is said in the State v. Wise, 33 S.C. 594, 12 S.E. 556: "The plea of self-defense 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."
In the case of the State v. Thrailkill, supra, Mr. Justice Woods, in rendering the opinion of the Court, says: "The well settled rule in this State is that in order to make out the plea of self-defense it is necessary to show: (1) that the accused believed it necessary to take his assailant's life in order to save his own life, or to avoid serious bodily harm; (2) that the circumstances were such as in the opinion of the jury warranted such a belief in a person of ordinary firmness and prudence when situated as the accused; (3) the accused must be without fault in bringing about the difficulty.State v. Whittle, 59 S.C. 297, 305, 37 S.E. 293. It is clear that the necessity required is not shown without proof that there was no probable means of escape."
The charge, as a whole, was clear, impartial, forcible and in no manner prejudicial to the defendants in any of the particulars pointed out or made by the exceptions of the appellants, and was not a charge on the facts, and all of the exceptions should be overruled and the judgment of the Circuit Court affirmed.
Judgment affirmed. *Page 35