The appellant was tried and convicted of murder, with recommendation to mercy. Such facts as are necessary will be stated in the discussion of the questions raised.
I. The State was allowed to prove, over the objections of the appellant, that at several times on the morning of the homicide, and before the homicide, the appellant spoke harshly to other people. The defendant did not put his character in issue. The State cannot attack the defendant's general reputation unless the defendant shall himself put his reputation in issue. The purpose of allowing proof of general reputation is to show that the defendant is probably not the aggressor. The effect of showing that the defendant was in a bad humor that morning was the same. It tended to show that the defendant was the aggressor, and was clearly incompetent. It is said that the case of Statev. Rowell, 75 S.C. 506; 56 S.E., 23, is in conflict with this holding, but not so. In the Rowell Case, the defendant was drunk and seeking a difficulty. 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 damned lie, and I don't believe a word of it." It tended to show that the defendant was in an aggressive mood and probably the aggressor in the case at bar. The evidence here showed that the defendant wanted to be let alone.
The testimony of the witness Yaun was as follows:
"I saw Mr. Gregory on the Sunday morning of the killing, 15 or 20 minutes before, between the ice cream parlor and kenny's store.
"Q. Did you speak to him? A. Yes, sir. *Page 105
"Q. Did he speak to you? A. No, sir; I didn't hear him.
"Mr. Williams: I want it understood that we object to this line of testimony.
"The Court: I understand that.
"Q. What was his humor? A. He seemed to be drinking, or mad, or something. He was out of his usual way. I have known Mr. Gregory intimately for 15 years, and I know when he is drinking and when he is not. This was 10 or 15 minutes before the shooting. I had just gotten home and got on the porch and sat down when the shooting happened."
The testimony was a mere opinion based upon no fact, and then the witness did not know whether the defendant was "drinking, or mad, or something."
The assignment of error should be sustained.
II. When the State's witness Arthur Johnson was on the stand, he stated on the cross-examination that the defendant had first been appointed deputy sheriff by a man named Brown who is now in the asylum. The defendant then offered to show that he had been reappointed by good men who were not in the asylum. This testimony was objected to by the State and excluded.
This assignment of error cannot be sustained. The testimony was clearly irrelevant to any issue in the case.
III. The quarrel between the defendant and the deceased was the result of a club election. The deceased stated that the defendant, one of those elected, was illegally elected. The legality of the election had nothing to do with the guilt or innocence of the accused. This assignment of error cannot be sustained.
IV. The appellant complains of error in the following charge:
"Human life is a tender thing, and the law says that, before you strike, you must retreat to the wall." *Page 106
His Honor charged the jury:
"The law of self-defense is grounded on the foundation of necessity. The law does not allow a man, though he may honestly believe he is in peril of receiving serious bodily harm or losing his life, to shoot down another if there is a reasonable or probable means of escape — not possible means, but a reasonable and probable means of escape. Human life is a tender thing, and the law says that, before you strike, you must retreat to the wall; but the party does not have to retreat if by retreating he increases his danger of receiving serious bodily harm or losing his life, for a man may be surrounded by circumstances, either real or apparent, that brings him to the honest conclusion that he is about to receive serious bodily harm or lose his life, and that in case if there was no reasonable grounds of escape, and that an ordinary man would have thought so, that he would not be bound to retreat, and if he has shown that by the preponderance of the testimony he would be entitled to a verdict of acquittal at your hands."
If the defendant desired any fuller statement, it should have been requested. This assignment of error cannot be sustained.
V. The verdict was rendered at 12:20 o'clock p. m. on Sunday, October 8, 1922.
The statute taken from appellant's argument is:
"The Court of General Sessions for the County of Aiken shall be held at Aiken on the second Monday in January, two weeks; the first Monday in May, two weeks, and the fourth Monday in September, two weeks."
The appellant claims that Sunday is a dies non, and the term expired at 12 o'clock on Saturday night.
The point is so fully covered by Hiller v. English, 4 Strob., 507, that no other statement is necessary:
"I think that an examination of our statutes would show that the day on which the verdict in the case now under consideration was received (even admitting it to have been *Page 107 Sunday at noon), being within the term of two weeks, which, without exception of any days, is, by the Act of 1845 (11 Stat., 316), prescribed for Richland district, was, by Act of the Legislature, a judicial day, whatever may have been the common law on the subject; not that I suppose the Legislature has commanded or contemplated the ordinary sitting of a Court on Sunday, but that I find the legislative will expressed in terms which plainly import, according to the established canons of interpretation, that judicial business is authorized during the whole of a term which includes Sunday; and I receive this expression as a removal of prohibitions and penalties, which at least would justify proceedings on Sunday in cases of strong necessity, in the exercise of a sound discretion that would do violence to no conscience and encounter no prejudice."
This exception is overruled.
Some of the other exceptions are mere incidents peculiar to the last trial and some should not be discussed, in view of the fact that a new trial should be ordered.
I think that the judgment should be reversed, and a new
MR. JUSTICE WATTS concurs. trial ordered.