The opinion in this case was handed down July 6, 1906, but on petition for rehearing, remittitur stayed until
December 18, 1906. The opinion of the Court was delivered by *Page 542 The defendant, Thomas E. Ross, was indicted for the murder of Thomas Austin, no the 2d of April, 1905. He was tried at the special term of Court of General Sessions of Greenville, 1905. The verdict of the jury was, "Guilty of manslaughter, with a recommendation to mercy," and the defendant was duly sentenced to imprisonment for two years in the State penitentiary. From this judgment he now appeals. The following is a brief summary of the testimony at the trial:
The defendant, Thos. E. Ross, and the deceased, Thos. Austin, among others, were lying on a pile of saw-dust in a stable of one Tanner, conversing. Austin finally sat on top of Ross, and said, "Get up, frog," and then rubbed his face with saw-dust. One of the parties present said, "Tanner, look here, had you not better stop that?" — thereupon Tanner pulled the said Austin off of the said Ross; Austin then saying, "I'm going to whip him," advancing toward the said Ross; but Tanner got in between the two men and pushed the said Austin back. Austin was without any weapon whatever, and had only used his fists against Ross. While Austin was trying to get to Ross, being separated from him by Tanner, Ross seized a rake, the handle of which was six feet in length, and, striking across Tanner, struck Austin a blow on the head, from which Austin fell and never recovered, dying in a short while afterwards. In the trial those facts appeared in evidence, the defendant offering no testimony of himself or any witnesses. The Circuit Judge made the charge to the jury, herewith reported.
The following requests to charge were made by the defendant:
"1. If A, being without fault in bringing on the difficulty, is assaulted by B, and, using only necessary force in repelling the assault, accidentally kills B, the killing is excusable. 1 Bishop, sec. 801.
"2. As a general rule, a person is not justified in using a deadly weapon to repel an attack with the naked hand. But even in such cases, if the person thus assailed reasonably *Page 543 apprehends death or great bodily harm, he may make use of such a weapon; provided the other elements of self-defense as I have explained to you are present. 25 A. E. Enc. L., 264.
"3. The ordinary requirement to sustain the plea of self-defense, that the defendant must make it appear that it was necessary to take the life of the deceased in order to protect his own life or to protect his person from serious bodily harm, cannot be insisted upon by the State, except in cases where from the character of the weapon used, the presumption of intending the natural consequences of his act, or positive testimony to that effect, the jury may conclude that the defendant intended to take the life of the deceased."
The grounds of appeal are as follows:
"The presiding Judge erred in modifying the defendant's first request to charge, which was as follows: 'If A, being without fault in bringing on the difficulty, is assaulted by B, and, using only necessary force in repelling the assault, accidently kills B, the killing is excusable.' Modification was as follows: `Provided, the other elements of self-defense have been established to the satisfaction of the jury, that would be true.'
"Specifications: The request did not purport to present the law of self-defense; a man has a right to repel any assault, whether he believes himself in danger of death or serious bodily harm or ont. The request was intended to present the law that if a man is assaulted by another, he himself being without fault in bringing on the difficulty, has a right to repel such assault, using such force as is reasonably necessary, and if in so doing he accidentally kills his assailant, he is excusable; irrespective of that element of self-defense, which he ordinarily must establish to make the plea good, that he thought he was in danger of death or serious bodily harm, and that a reasonably prudent person, situated as he was, would have so thought.
"II. The presiding Judge erred in refusing the defendant's third request to charge, which was as follows: 'The *Page 544 ordinary requirement to sustain the plea of self-defense, that the defendant must make it appear that it was necessary to take the life of the deceased in order to protect his own life or to protect his person from serious bodily harm, cannot be insisted upon by the State, except in cases where from the character of the weapon used, the presumption of intending the natural consequences of his act, or positive testimony to that effect, the jury may conclude that the defendant intended to take the life of the deceased.'
"Specification: The same presented a correct proposition of law applicable to the case, and should have been charged."
It seems to us, in disposing of these grounds of appeal, that the charge of the Circuit Judge covers the same most thoroughly.
It is true, that in disposing of them in his charge, the Circuit Judge is very thorough, and while not adopting the requests to charge as outlined by the defendant, he has substantially disposed of every feature thereof. It is sometimes necessary, in order that a jury may thoroughly comprehend the law governing the trial of a cause, that the Circuit Judge take up the law systematically and logically.
We think the Circuit Judge has done this in the present case. That in so doing he has violated no law of this State. The defendant could and should only claim that his propositions of law as submitted should be passed upon by the Circuit Judge. The order in which the same shall be done must be left to the wise discretion of the Circuit Judge, who is responsible to the people of the State, including the defendant, that our criminal law shall be upheld.
The exceptions are overruled, and it is the judgment of this Court that the judgment of the Circuit Court be and the same is hereby affirmed.
MESSRS. JUSTICES GARY, JONES and WOODS concur in theresult. *Page 545
December 18, 1906.