8077

#### STATE v. JONES.

1. The instruction “You are prepared to hear the charge of the Court and- to retire after hearing that charge and go over the testimony and extricate from the testimony the truth of the case,” is not on the facts, but-was general and simply required the jury to ascertain the truth of the case from the testimony.

2. Self-Defense. — The instruction, “So when a man strikes another a blow and that man acting under the influence provoked by the blow shoots and kills, that is a clear case of manslaughter,” when considered in its connections, and the whole charge was not a statement of facts, but a hypothetical statement, and could not have the effect of excluding the doctrine of self-defense which was elsewhere fully given.

3. Ibid. — The Court did not limit the doctrine of not retreating to cases where firearms or some dangerous weapon was drawn for use, or being used, but instructed the jury that one may stand and take the life of his assailant where the necessity is either real or apparent to a man of ordinary reason and firmness.

4. Charge — Requests.—Where the record shows that all requests by appellant were read by the 'Court, and none objected to, refused or modified, there is no ground for an exception that any of the requests were refused.

5. Reasonable Doubt — Preponderance op Evidence. — The instruction here complained of held, when construed with its context, to have informed the jury that the defense of self-defense must be proved, by the preponderance of the evidence, but on the whole case the guilt of the accused must appear beyond a reasonable doubt.

6. New Trials — Jurors.— Wlhere appellant does not satisfy the 'trial Court that he has used due diligence in ascertaining if a juror is over age, or is not a qualified elector, or that the juror is in fact over age, and the record not showing his conclusions contrary to the evidence, its findings will not be disturbed.

What a party alleging a juror is disqualified must show to entitle him to a new trial, stated.

Before MemmingER, J., Orangeburg, January term, 1911.

Affirmed.

Indictment against John J. Jone9. Defendant appeals.

*291*Messrs. Wolfe & Berry, Glaze & Herbert*and *C. P. Brun-*son> far appellant,

cite: *Qualification of jurors:*54 S'. C. 128, 148; 55 S. C. 90; 56 S. C. 379; 73 S. C. 518; 74 S. C. 464; 79 S. C. 119; 80 S. C. 45, 349; 89 S. C. 260; 86 S. C. 49.

*Solicitor P. T. Hildebrand*and' *Messrs. Raysor & Summers,*contra.

*Messrs. Raysor & Summers*cite: *Qualification of jurors: Mew*v. *R. R.,*55 S. C. ; 74 S. C. 465; 83 S. C. 221; 80 S. C. 44; 79 S. C. 116; 89 S. C. 260'.

January 6, 1912.

The opinion of the 'Count was delivered by

Mr. Chief Justice Jones.

The appellant, John J, Jones, tried under ami indictment charging him with, the murder of Abe Pearfstine, was convicted of manslaughter and1 sentenced to ten years and one month in the penitentiary.

1 The Court instructed 'the jury: “You are prepared to hear the charge of the Court and to retire after hearing that charge and go over the testimony and 'extricate from the testimony the ¡truth of the case.” By his first exception appellant contends that this was a charge on the facts, in that it in effect declared that there was both truth and falsity in the testimony.

The charge was general and did nothing more than require the jury to ascertain the truth of the case from the testimony. No testimony was; singled out as 'true or falsie, and there was nothing to indicate the Court’s opinion of the testimony one way or the other.

The second and third exceptions were withdrawn.

2 The fourth, exception complains of the following language in the charge: “So when a man strikes another a blow and that man acting under the influence provoked by the blow, shoots' and kills, that is a clear case of manslaughter,” the contention being that the charge excluded ’Self-defense and was a statement of facts in the case. *292The context shows that the Court was instructing the jury as to the distinction between, murder and manslaughter and that the facts were stated hypothetically, as appears by the following extract embracing the portion to which exception is taken: “Now the killing of a 'human being in sudiden hiealfc and passion is not always manslaughter. A man may kill another that way and it may be murder. The test is was the sudden heat and passion engendered by such provocation as the law recognizes. The law recognizes a blow as a provocation. If a man strikes another a blow and he becomes provoked by the blow and acts under the influence of that provocation and shoots and kills, then the law reduces the killing from murder to' manslaughter, unless sufficient time elapsed between the striking of the blow and the killing in which a man of ordinary reason, prudence and caution should have cooled, and would have cooled from the provocation. That is a matter for the jury. The law ■ says that a man must cool in such time as a man. of reasonable firmness, and prudence and caution would have cooled in and should have cooled in; *so'when a man strikes another a blow and that man, acting under the inñuence provoked by the blow shoots'and kills, that is a clear case of manslaughter,*but if any time intervenes between the striking of the blow and the firing- of the fatal shot then it'is for the jury to say whether that time that has elapsed was sufficient to' constitute cooling time. That is if a mao of ordinary reason and firmness and prudence would have cooled. If such time ha's elapsed then the provocation can not be invoked as an excuse.”

After this charge the Court immediately proceeded to instruct á® to the law'of self-defense. It was not error in stating the distinction between murder and manslaughter to' omit immediate reference to the law cif self-defense. All the law of a case need not be stated in a single proposition. It is sufficient if the charge as á whole declares the law appli*293cable to the case. *State*v. *McKellar, 85*S. C. 240, 67 S. E. 314.

3 The fifth, exception complains1 that the Court erroneously' charged.1 the iaw regarding the rule or doctrine of retreait, ini respect to the plea of self-defense, limiting the right to stand one’s ground 'to cases where a firearm' or some dangerous weapon was actually drawn for use or being- used, thus depriving the defendant of the right to act on appearances and1 .stand his ground if lie reasonably apprehends that his assailant is armed and seeks favorable opportunity to draw and use his weapon.

Tibe charge is not subject to the criticism stated, as a reference -thereto will show that the Court charged that one assailed is not required to retreat, “if by so doing he would probably endanger bis safety.” The whole instruction, on this point gave the defendant the benefit of the law that the necessity to kill must be either real or apparent, to be determined -by the- jury, in view of the circumstances, surrounding the defendant, and 'by applying the rule that the defendant must believe and act as a man of ordinary reason and firmness would in such circumstances. The law was correctly declared in conformity with the rule thus stated by Mr. Justice Hydrick in *State v. McKellar, supra:*

> “If one can with reasonable safety to himself retreat and thereby avoid the necessity to -strike in self-defense, then the necessity for which the law will excuse him1 for striking- can not be said to exist.”

The sixth exception was abandoned and the seventh, eighth and ninth exceptions will be considered last.

4 The 'tenth -exception complains that the presiding Judge refused to charge defendant’s first, third, fifth, eighth, ninth, and tenth requests to charge. The record shows that defendant presented deven requests to charge .ini writing and that the Court read them all to the jury and that he did not object to, modify, or refuse to charge any of the requests mentioned in 'the .exception. Under these *294circumstances we aire bound- to assume that instruction, was intended to be given in accordance with the requests read to the jury. Moreover the general charge as a whole substantially covered the law applicable 'to the case.

5 The eleventih exception assigns error, in the charge to the jury: “The law is that -every material element of the case must be proved beyond a reasonable doubt,” the ground of objection being ¡that defendant had interposed a plea -o-f self-defense and that such material element in the case was only to be proved by the preponderance of the evidence. We fail to- see any .merit in this exception. The Court was instructing the jury with respect to the case which the State was required to prove, and in another portion of the charge the jury were instructed to- acquit the defendant if his- plea -o-f self-defense was made -out by the preponderance of the evidence, and further to acquit defendant unless they were satisfied beyond a reasonable doubt that his plea of self-defense was not m-ade out. The defendant has no ground to corn-plain of the charge as it gave him full benefit of thle rule -established in this State that .where self-defense is pleaded to an 'indictment the defendant must establish it by the preponderance of the evidence, but at the same time the guilt of -the accused must be m-ade to appear beyond a reasonable do-ubt. *State*v. *Welsh,*29 S. C. 4, 6 S. E. 894; *State*v. *Bodie,*33 S. C. 132, 11 S. E. 624; *State*v. *McDaniel,*68 S. C. 37, 47 S. E. 384.

6 The seventh, eighth and ninth exceptions allege error in the refusal to grant a new trial because one of the jurors, A. E. Rutland, was disqualified by age to serve as a juror. The Constitution, art. V, sec. 22, provides: “Each juror must be a qualified -elector under the provisions of this constitution between -the ages -of twenty-one and' sixty-five years and of good moral character.” It is contended that the juror was 'over sixty-five years at- the time of the trial in January, 1911. At the time of the motion juror Rutland was absent and no 'affidavit from- him *295as To bis age was presented. There were affidavits' ini which the affiants swore that Rutland told them that he was sixty-five years old ini September before the triad'. It also was made to appear that Rutland was not registered as an elector ini Liberty township where he was residing;, but was registered in Willow township, Orangeburg county, in 1908, where his age was stated to be sixty-two, which if true would make him less than sixty-five at the time of the trial. It appeared also by affidavit that neither defendant nlor any one of his counsel knew at 'the time of the trial that Rutland was over age.

It was incumbent on movant to show (1) the fact of disqualification!, (2) that it was- unknown before verdict and (3) that be was not negligent in making discovery of the disqualification before verdict. The Circuit Court ruled as follows;

“My finding is that considering- the fact set out in the affidavits there was no sufficient diligence shown. The jurors had been drawn for fourteen day© before Court, and I believe that it is conceded that the names were published in the county papers a week or ten; days before Court convened, this gentleman was well known in the community and the lawyers had the list of the jurors in their hands and there were important cases- to be tried and as every one knows the list was gone 'over by the lawyers -and every one interested in the case. The slightest inquiry would have made known the fact that the juror was over age. If he had been asked I have no idea but that he would have told the truth. The juror was brought up and presented and it was quite possible that he might have been near the age of disqualification'. You went ahead and swore him; on the jury and did not exercise that diligence which is required. I would certainly overrule the motion for a new trial' on that ground1, considering the facts that are before míe. I think it is a fair question for debate as to whether the gentleman was over sixty-five years or not. Very often a gentleman of 'that age is *296uncertain as' to his age, very possibly he might ’have been under sixty-five.

“It is very unfortunate that he was not asked the question as to his age befóme he wasi swarm, instead) of waiting until-afterwards.”

It thus appears that movant failed to satisfy the Court as to the fact of disqualification; and as to the exercise of due diligence in making discovery of the disqualification, if -such existed. We can not upon the record say that the conclusion of the Circuit Court was' contrary to all the 'evidence, or that the ruling was an abuse of discretion.

Tire failure- to -exercise due diligence in the use of easily .available means of discovering whether a juror is disqualified by age or from not being a qualified elector was fatal to the motion for a mew trial. *Blassingame*v. *Laurens,*80 S. C. 46, 61 S. E. 96.

. .The exceptions are overruled and 'the judgment of the Circuit Court is affirmed.-