The final opinions in this case were filed on December 7, 1912, but remittitur was held up on application for writ of error to the United States Supreme Court until
*510February 8, 1913.The first opinion was delivered by
Mr. Justice Watts.The defendant was indicted for the murder of Luther Mullinax and tried for the same at the January term of Court of General Sessions for Greenwood county, 1912, and found guilty of manslaughter. A motion for a new trial! having been made and overruled by his Honor, Judge Sease, he was sentenced to three and a half years in the penitentiary. An appeal was taken, alleging numerous errors on the part of the presiding Judge. The exceptions, 17 in number, can be grouped together and considered under general heads.
1. The alleged error on the part of the trial Judge in admitting testimony over the objection of defendant.
2. Alleged error on the part of his Honor in his charge to the jury.
3. Alleged error to the manner in which the verdict of the jury was arrived at and in not granting a new trial and setting the verdict of the jury aside.
4. Alleged error on the part of his Honor to hear counsel in full on their motion for a new trial.
1 As to the first, a careful examination of the record in the case will show that his Honor was not in error in admitting the evidence of Mrs. Mullinax, as far as he allowed it to come in as a dying declaration. The rule laid down as to dying declarations, is thus stated: “To render these declarations admissible, it was only necessary that the trial Judge should be satisfied. 1st. That the death of the deceased was imminent at the time the declarations were made. 2d. That the deceased was so fully aware of this as to be without hope of recovery. 3d. That the subject of the charge was the death of the declarant and the circumstances of the death was the subject of the declaration.” State v. Banister, 35 S. C. 290, 14 S. E. 678; State v. Petsch, 43 S. C. 148, 20 S. E. 993.
*511As to the other exceptions under this head, no specific errors are pointed out to direct our attention to' what was objected to and an examination of the record by us fails to reveal any testimony on this ground at the trial that was objected to by the defendant. The only testimony along this line is that of defendant’s witnesses, who testified without objection. The exceptions raising this question are overruled.
2 As to the exceptions that allege error in the manner in which the verdict of the jury .was arrived at: An unbroken line of decisions by the Courts of this State, even before the case of Smith v. Culbertson, 9 Rich. Law 106, up to this time sustains the position taken by his Honor, Judge Sease. In Smith v. Culbertson, Wardlaw, Judge, says: “But here the privacy of the jury room is to be invaded. The grounds upon which the assent of the jurors to the verdict publicly rendered was given are to be scrutinized; and men sworn to render a true verdict according tO' the evidence, are to be heard to declare that they agreed to abide the determination of chance, and yielded their assent to the verdict only because they had entered into this agreement, plainly repugnant to the obligation of the oath they had taken.”
The Court also' says : “The mischiefs, the delays, the arts, the scandal likely to ensue come naturally to our thoughts, when we imagine the encouragement given to the pursuit of jurors by disappointed suitors, for the purpose of obtaining affidavits to invalidate verdicts regularly rendered. Any affidavit made by a juror for ths purpose, after separation of the jury, is dangerous and suspicious; but especially so is an affidavit showing gross impropriety in which all the jurors participated, and which at its commission was known only to themselves. A verdict decided by chance may be set aside. So may a verdict which was decided by a bare majority of the jury, and one which was rendered against the will of any juror. Yet verdicts must be generally *512attained by compromise of some sort. The reasons of jurors are no doubt often ridiculously absurd. There must, however, be an end to1 litigation. After a verdict has been rendered, and the jurors have dispersed, a juror would not be heard who would say that his assent was forced, or was given under some misconception or according to some chance, whose decision he had privately resolved to adopt. His public silent act would refute all such after thoughts; and his silence, when he should have spoken, would outweigh his subsequent assertions. With like reason, the solemn act done by a jury as a body, should not be invalidated by affidavits contrary to it, which some or all of the jurors may make concerning the private reasons which influenced the body, imputing misconduct to themselves, and not to other persons. Whether they have been misled by sophistry or mistake, or have adopted the determination of a majority or chance, they have upon their oaths unanimously rendered a verdict in solemn form, and high considerations of justice and policy place their verdict beyond their future influence. Decency itself forbids that they should assail it by disclosing to their own shame, the secrets of themselves.”
This principle has been reaffirmed and recognized in several subsequent cases where the facts were somewhat different and not altogether like the identical facts in the case of Smith v. Culbertson, the difference of facts being immaterial in some and quite different in others. Some of these cases are: State v. Nance, 25 S. C. 172; State v. Senn, 32 S. C. 403, 11 S. E. 292; Bratton v. Lowry, 39 S. C. 388, 17 S. E. 832; State v. Bennett, 40 S. C. 310, 18 S. E. 886; State v. Kelly, 45 S. C. 668, 24 S. E. 45; State v. Robertson, 54 S. C. 154, 31 S. E. 868.
It appears when the verdict was returned at the request of defendant’s counsel the jury was polled and each juror announced that the verdict rendered was their verdict. Later on, when an effort was made to^ show the Court how the verdict was arrived at, and what took place in the jury *513room, Judge Sease at first stopped the reading of the affidavit of the foreman of the jury and “held it was against public policy to go into the jury room and find out what had been done in there.” He was correct in this ruling and should have adhered to it, as there was no effort to show that the jury after returning had been subject to any outside influence or that their privacy had been invaded or that they had been furnished liquor or anything of the kind or that they were guilty of misconduct, such as the Court should inquire into. The sole effort was to bring out what took place in the jury room among the jurymen themselves, uninterrupted by outsiders, in the privacy or secrecy of their deliberations. But, his Honor went further and reconvened the jury and examined them, or permitted it, and allowed all of the facts to be brought out and then refused to interfere with the verdict rendered by them. He decided, after the fullest investigation, that there was no misconduct on the part of the jury and that the verdict by them was their verdict. We are inclined to agree with him in this view and think the verdict rendered by the jury was arrived at by them voluntary and free from misconduct on their part to such am extent that it should not be interfered with on that account.
The exceptions raising this question are, therefore, overruled.
4th. As to the alleged error on the part of his Honor to hear counsel in full on their motion for a new trial.
3 We think the exceptions raising this question should be overruled, as it is a -matter in the discretion of the presiding Judge as to how long he will permit argument, and how it is to be argued, on a motion for a new trial. The facts of the trial are usually fresh in his mind, and he has some discretion as to’ whether he will allow a retrial of the whole case before him and a reargument of the whole case inflicted on him, or only direct attention to certain questions that he wishes discussed. *514This wise discretion on the part of the Judge we are confident will not be often abused, and the parties moving for a new trial will usually be accorded a full, patient and ample hearing, and in this case we see no erroneous exercise of authority or power on the part of his Honor, the trial Judge. The exceptions raising this question are overruled.
4 As to the 2d head of exceptions, which allege error on the part of his Honor in his charge to the jury. His Honor, in his charge to the jury in drawing the line between the measure of proof required by the State in rnalcing out its case and the measure of proof required by the defendant in making out his affirmative defense, used the following language: “In the first place, gentlemen, the State is called upon to prove the guilt of the defendant at the bar beyond all reasonable doubt; that is, a doubt for which you can give a reason — not a flimsy or fanciful doubt, but a reasonable doubt. The defense of self-defense is an affirmative defense and must be shown by the defendant by a preponderance of the testimony. The measure of proof on the part of the State is beyond a reasonable doubt; the measure of proof, before the defendant can say that he has made out his case of self-defense successfully, is by the preponderance of the evidence — by the greater weight of the testimony. Therefore, as an illustration, you will take all of the testimony in favor of his plea of self-defense, put it in an imaginary scale, in your mental picture — put all the evidence in one side of that scale or balance in favor of his plea and all the evidence against it 'in the other side, and if it stands evenly balanced in your mind the plea of self-defense falls to the ground, and has not been made out. But if the side in which you have placed, in your mind, the testimony in favor of the plea of self-defense, outweighs or preponderates in the least the other side, then his plea of self-defense has been made out, and you will write a verdict of not guilty.”
*515In the entire charge this is all that appears on this proposition. Nowhere, do we find that he stated to the jury that the defendant was entitled to the benefit of every reasonable doubt on every material point in the case and cure, as it were, this defect in his charge, as was done by the presiding Judge in the following cases: State v. Way, 38 S. C. 346, 17 S. E. 39; State v. Andrews, 73 S. C. 260, 53 S. E. 423; State v. Thrailkill, 71 S. C. 136, 50 S. E. 551; State v. Way, 76 S. C. 94, 56 S. E. 653.
The Court has squarely held that the defendant is entitled to the benefit of every reasonable doubt' on every material point in the case, and in particular as to the measure of proof on the plea of self-defense.
In the case of the State v. Bodie, 33 S. C. 132, 11 S. E. 624, Mr. Justice Mclver says: “The rule, as we understand it, -is that while the State in a criminal case is bound to prove every essential element of the charge made beyond a reasonable doubt, the same strictness of proof is not required of a defendant who sets up a special defense, for he is only required to prove such defense by a preponderance of the evidence. But this, of course, is subject to the general rule that if upon the whole testimony, both on the part of the State and the defendant, the jury entertain a reasonable doubt as to any material point in the case, the defendant is entitled to the benefit of such doubt.” Citing State v. Paulk, 18 S. C. 514; State v. Bundy, 24 S. C. 439; State v. Welch, 29 S. C. 4, 6 S. E. 894.
. We think his Honor was in error in charging the jury in the language he did. That it was misleading and prejudicial to the defendant and the exceptions raising this question should be sustained and a new trial granted.
The judgment should be reversed.