State v. Waldrop , 73 S.C. 60 ( 1905 )

November 9, 1905. The opinion of the Court was delivered by The appellant was indicted for the murder of S.L. Maddox, and the jury rendered a verdict of guilty, with a recommendation to mercy. The homicide took place on the 31st of December, 1904. The defendant appealed upon exceptions, which will be set out in the report of the case; and in considering the questions presented by them, reference will be made to the exceptions by numbers.

First exception: The appellant's attorneys conceded that the writing was admissible in evidence, for the purpose of showing the contents found in the pockets of the deceased, but contend that it was inadmissible as a contract, unless "proved legally." There was no subscribing witness to the writing, and the objection to the testimony did not specify in what manner it was to be proved. If, however, the defendant intended to object to the introduction of the writing in evidence, unless there was testimony as to the signatures of the parties, still the ruling of his Honor, the presiding Judge, was not erroneous. It was not the object of the State to prove the contents of the writing further than to show that a contract was entered into between the parties by which the deceased became the lessee of the land for the year 1905. This was a mere collateral fact that did not render necessary formal proof of the execution of the instrument. Lowry v. Pinson, 2 Bail., 324; Sims v.Jones, 43 S.C. 91, 20 S.E., 905.

Second exception: The record discloses the following during the examination of D.L. Donald: "Who owns the Seawright place where Maddox was said to have been killed? My wife. Who manages the place? I do. To whom was it rented for the year 1905? To Mr. S. L. Maddox. By Mr. McCullough: When did you rent it to Mr. Maddox? I rented it through my agent, Mr. Ellison, acting as my agent. Were you there? No, sir. By Mr. McCullough: I ask, then, that your Honor strike that testimony out." The presiding Judge ruled that he could ratify the act of the agent, whether he was present or not, and in this we see no error.

Third exception: The testimony was intended merely to show that the State was taken by surprise. The conduct of a case must, necessarily, be left in a large measure to the discretion of the presiding Judge, and there was no abuse of discretion in this instance.

Fourth exception: In refusing the sixth request set out in this exception, his Honor, the presiding Judge, said: "This request is refused for the reason that while admitting it to be a correct abstract proposition of law, there is no evidence in the case that would make such a charge applicable." One witness testified as follows: "Q. Did Mr. Maddox ever tell you his intention about moving any negroes into that house? A. Yes, sir. Q. What did he tell you? A. He told me that when New Year's day came, regardless of who was in there, that he was going to take his axe down there and break the door down, and move in on them."

Another witness testified as follows: "Q. Did you ever hear Mr. Maddox say anything with reference to the place in dispute? A. Yes, sir. Q. When was it? A. It was some time before Christmas. Q. What did he say? A. Well, we were just laughing and talking, me and Mr. Maddox, and I said: `It seems that you are going to get in trouble about that place?' and he said: `I think not, but it don't matter a damn who is in that house when the new year comes, I am going to put Andrew Madison in there.' Q. Did you state that to Mr. Waldrop before the killing? A. Yes, sir."

While this testimony unquestionably tends to prove that the deceased threatened to attack the habitation, there is not a particle of testimony tending to establish threats to take the life of the defendant or to do him any bodily harm.

In 1 Arch. Cr. Pr. and Pl., 693, it is said: "If a person by violence or surprise, attempt to commit a felony upon the person, habitation, or property of another, the latter may repel force by force, and if, in the conflict, he happens to kill the offender, the homicide is justifiable," thus recognizing the distinction between felonies committed upon the person, and upon the habitation. This exception does not involve the question whether a person has the right to defend his habitation, but the question under consideration is whether a threat against a habitation is a threat against the person. In our opinion it is not.

Fifth exception: The request set out in the exception was inapplicable to the facts of this case, and its tendency was to mislead and confuse the jury, by seemingly recognizing the doctrine that a person upon whom a simple assault is made is not bound to retreat, but may take the life of the assailant to prevent the simple assault from being carried into effect.

Sixth exception: In refusing the request mentioned in this exception, the presiding Judge said: "Refused for the reason that there is no testimony even tending to show that the deceased ever threatened the life of the defendant." This exception is disposed of by what was said in considering the other exceptions.

Seventh, eighth, ninth, tenth and eleventh exceptions: In refusing the requests mentioned in these exceptions, the presiding Judge assigned the following reasons: "Refused for the reason that the defendant, in his narrative of the homicide, did not seek to excuse the act in defense of his habitation, but in self-defense. While it may be true that the quarrel or difficulty grew out of a discussion of the right of possession, still there is nothing in the case that would tend to show that the deceased was making any effort to dispossess defendant. On the contrary, the defendant in his testimony states that he invited the deceased to come in."

In considering whether the requests were properly refused, it will be necessary to refer to the testimony showing the relation in which the parties stood to each other. D.L. Donald, a witness for the State, testified as follows: "Who owns the Seawright place, where Mr. Maddox was said to have been killed? My wife. Who manages it? I do. To whom was it rented for the year 1905? To Mr. S.L. Maddox. So you did rent it to Mr. Maddox? Yes, sir; when the contract was drawn I was present. When was the contract drawn? I don't remember the date, you have it there. Do you know Mr. Waldrop? Yes, sir. Did you ever have any conversation with him about renting the place? Yes, sir. At what time? The same day it was rented. The same day Mr. Ellison rented it? Yes, sir. You were not there? I was not there when the trade was made between Mr. Ellison and Mr. Maddox. What day was it you had a conversation with Mr. Waldrop about renting it? I don't remember the date. At that time, had you heard that Mr. Ellison had rented the place to Mr. Maddox? No, sir. So you had a conversation with Mr. Waldrop before you knew what Mr. Ellison had done? Yes, sir. So you rented it to Mr. Waldrop? We agreed on the price. What was the contract? We agreed on a contract and he was to come over to my place the next day and sign a written contract. What other things were to go into that contract? Similar as to what is in that one. What other things did you and Mr. Waldrop discuss? I told him that I would have to have a written contract. What else was to go in that contract, except what was discussed between you and Mr. Waldrop? I don't remember that anything was. And was that to be reduced to writing? Yes, sir. When was it to be reduced to writing? The next day or the day after, he was to come to Williston, and we were to reduce the contract to writing. At that time, had you heard nothing from Mr. Ellison? No, sir. When did you hear from Mr. Ellison? About a half an hour after that. When did you see Mr. Waldrop after that? This is the first time. Were you ready to execute the contract if he had come? No, sir, I was not; I had learned that Mr. Ellison had rented it to Mr. Maddox, and I wrote him a note to that effect. When? As soon as I could drive to Mr. Moon's. So, if he had come the next day, you would not have entered into the written contract with him? I could not have, Mr. Maddox had a prior claim. The fact is, on that day, as the agent for your wife, you made the contract verbally with Mr. Waldrop, and the contract was to be subsequently reduced to writing? We specified what was to be in the contract?"

On the evening of the day when said negotiations took place, the defendant did some plowing on the land. On the day preceding the homicide, the defendant, about dark, moved certain articles of furniture into the house and spent the night there. Wiley Seawright was then in possession and agreed with Waldrop to move away the next day, but there was testimony tending to prove that he had not surrendered the premises to Waldrop when the difficulty occurred. The defendant stated in his testimony that he extended an invitation to the deceased to come into the house.

Wiley Seawright testified: "I heard Mr. Maddox say, `As soon as Wiley gets out I am going to move Anderson Madison in:' and Mr. Waldrop said: `If you have the law to move a damn negro in on me, put me out;' and Mr. Maddox said, `I have the law in my pocket,' and Mr. Waldrop said: `Get out of my house,' and about that time I looked and Mr. Waldrop had his pistol out to shoot, and did shoot, and Mr. Maddox staggered and made for the front door."

It will thus be seen that the testimony tended to show:

1. That the deceased had the superior right to the possession of the premises. 2. That while both the defendant and the deceased were in the actual and peaceable possession, Wiley Seawright had not formally surrendered his right of possession to either. 3. That the deceased did not enter the house as a trespasser, but upon the invitation of the defendant. 4. That although the deceased was notified to get out of the house he was immediately shot. Under these circumstances the requests were inapplicable to the facts of this case. State v. McIntosh, 40 S.C. 349, 18 S.E., 1033.

Twelfth exception: If the presiding Judge erred in stating the issues raised by the pleadings, it was the duty of the defendant to call his attention to such fact, if he intended to rely upon it is a ground of appeal.

Thirteenth exception: This exception is disposed of by what was said in considering the other exceptions.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.

THE CHIEF JUSTICE did not participate in this opinionbecause of illness.