April 11, 1921. The opinion of the Court was delivered by The defendant was tried on an indictment, charging him with the murder of Roland Shelton. He admitted the killing, but pleaded self-defense. The jury found him guilty of manslaughter, and he appealed from the sentence imposed on him. The record contains this statement:
"It appears from the testimony that the deceased, in company with his father, a brother, and two friends, were sitting down near the public road on the plantation of T.W. Traylor, in Fairfield county, and nearby was a well, which was used by the tenants on the plantation. Will English, a tenant on the place, came down to the well with two of his little children and drew them a bucket of water, and then started on down the road in the direction of the farm, which he was cultivating. He was carrying a shotgun, which he stated was for the purpose of shooting crows. His route led him by the party of which the deceased was a member, and when opposite them he exchanged greetings with them. Brice Shelton, a brother of the deceased, then said to English that he had heard that English had accused him of going into his watermelon patch. The defendant denied this, and Brice Shelton told him that if he had not made such an accusation that it was all right. Then Roland Shelton, the deceased, took up the conversation. and there is a conflict in the testimony as to just what passed, but this started the dispute which led up to the killing. The testimony in this connection is set out in the record."
Turning to the testimony we find that Brice Shelton brother of the deceased, thus testified: *Page 539
"Ed Stevenson, Bub, Virgil Jones, and Roland and myself were sitting down on a pile of logs in front of our door, and we were laughing and talking. Will English come up with his gun, and I says to him, I hear he had me accused of going into his watermelon patch; he said no, he didn't say it, and I said if he didn't say it, it was all right. My brother, Roland, asked him, `I hear you got me accused of going in there.' Will, he walks off a few steps, and he turned around and said: `Yes, damn you, I said it and I stick to what I said.' Then Will and Bub started toward one another."
The record also contains this statement:
"During the course of the solicitor's argument to the jury he argued that the defendant had circulated the report in that community that deceased had been in defendant's watermelon patch, and therefore the defendant was at fault in bringing on the difficulty. Defendant's counsel, in the midst of the solicitor's argument, objected to such argument, upon the ground that this provocation was too remote, that the defendant was not thereby deprived of the right of self-defense and after listening to arguments by counsel on both sides, the presiding Judge overruled the defendant's objection. The solicitor then argued to the jury that the defendant had circulated a report in the community that the deceased had been in his watermelon patch, and that when the deceased had asked him about it, he at first denied it, and had then repeated the accusation to his face with curses. The argument was that one who charged another with being a thief, and repeated it to his face in the manner described in the testimony, could not claim to be without fault. Defendant's counsel also objected to this argument, but their objection was also overruled."
The defendant appealed upon exceptions which will be reported. Neither subdivision (a) nor (b) of the first exception can be sustained, as the appellant assumes the fact that the accusation of the deceased by the *Page 540 defendant was without any intention or expectation of provoking a difficulty. Such issue was to be determined by the jury, and not by the Court.
The second exception must be overruled, as it cannot be reasonably supposed that the illustration in any manner whatsoever misled the jury.
The third exception cannot be sustained, as the charge of his Honor, the presiding Judge, is sustained by the cases of State v. Rowell, 75 S.C. 494, 56 S.E. 23, and State v. Lee, 85 S.C. 101, 67 S.E. 141, 137 Am. St. Rep. 869, and was applicable to the facts of this case.
Appeal dismissed.
JUSTICES WATTS and FRASER concur.