The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1894-01-17


Jones us. Syae 76 Alas.
| State u.s. Harman, 7S ~ c. 515
"Whee attacked by who manfestly attempts by
violence take his life him great bodily har and under
such circumstances that retreat practicable he is only
obliged retreat but may his adversary until he has
secured himself from all danger and he kill him in doing it
lis ustifable selfdefence." ...
), inner. Eng. E1cy. of H., COS.
Retreat is required where assault with deadly weapon
j Thompson State, Ioca 1885,
Kennedy us. State, 90 Iona $50.
Retreat not where the aalant has made threats and
his demonstrations indicate design them into execution
i Kennedy u.s. State Ney. 374.
In case at Mcintosh was threatened. Immediately
deceased advanced upon him. He pays heed to warnings but
still advances throwing his right hand into his pocket Under
these circumstances Mcintosh had the right believe that he
would draw deadly weapon and Judge Norton should have
charged that if such the true facts then he not bound to
retreat.
In Meredith Commonwealth 1S B. Monroe 40 Ky) it said
T threatened with deat great bodily harm and
reasonable ground believe that it will be Immediately in
icted unless prevented act of sefdence which in the
the asd he has the right to use such defence
for his safety although might afterwards appear that there
design nct the apprehended injury Therefore,
instruction that the defendant might lawfully kill his assaian
he had safe Of escapg and that he is not excusa
BILE "y he could hare safely rereatd from the danger and dy that
saced H erroneous because leaves out of view
or negatives the principle above stated"
| 0).
Exception III direct charge the facts and msead
ing.
his Honor erred in charging the jury follows: ~
say yo that the defendant here did he he did, and not
hdvag ac gets the table at whch the deceased mas SIT
ting the purpose, bona de of auoiding Fcy and the con-
duo, of deceased provoking his dood to
porar lose control Of his paons then 0oud be naaasIaag
lter"
This charge in ee-grant all that Mcintosh says to be
and he still guilty of manslaugher eliminating all possibility
of selfdeence When remember that ntmaon, coming
from the Judge goes long with the average jury this
strong expression bound to have it's effect
held by this Court error in Judge Adrich to say in
ISyofoos Nnrfon0S do not a
saughter equally Judge Norton in the
at bar, 'Then it would be lnanslaughter."
When Judge Norton in State Turner, instructed the jury
that verdict of manslaugher might be proper in the
Mr. Chief Justice Simpson, delivering the opinion of this Court
held he had committed and aid 1--WE think his Honors
charge did not leave the question of ence to
the jury" GO H. and 45 In his charge to the Mcintosh
jury Judge Norton again. by his suggestion of mansauge
dd leave the question of selfdeence open to the ury
90.
We think the trial Judge was misleading to the jury his
charge as to Sheriff Mann's testimony
This testimony entitled peculiar weight yet twice.
when foreman the jury had deberaed for nineteen
hours asked they should give the consideration or weight
other evidence in the ca the Judge qualified his
the jury much doubt Foios 80
and SO.
1. The testimony offered By the State and the Solicitor
stated that he stood upon every word of it.
g. The conversation between the Sheriff and McIntos was
had time and under circumstances which preclued all idea
manufactured" testimony 1t was Immediately after the first
lonely limits of his cell; overwhelmed with and
obeyng that impulse of the heart which at times Irresistible
his troubled soul the Sheriff. Listen to his first
sentences Sher it is hard for man to be sentenced to be
hung killing selfdeence" And beg the Court to
first trial his plea not seldefence but
unsounnes OF mind at the time of the homicide so that moth
ing at that trial could have suggested his speech
Under these circumstances think when the foreman simply
asked if they could give this testimony the ae consideration
any other in the Judge should have announced
ainy" more not have qualified his answer with long
qualifications as he did both times.
At last conclusion of the jury shows that compo
verdict "Gulty of manslaugher to
and this after hours deliberations and safe
Ito say that ntimatos qualifications and evident leaning of
his Honor had much to do with it. Foos 80 and 9G.
j SeIf-defense-Requisite of the Plea.
Our ground of appeal alleges the part of Judge
Norton charged that In order to make out
ofsedenc it necessary for the defendant to prove his
innocence by the preponderance of the testimony"
Herein his Honor's charge touches two questions;-
& On The Requisites in the Plea of Sefdefense; and
II (2 The burden of proof
( What are Requisites in the plea of Selfdense?
This Court has distinctly in State cGreer,
13 S. c. and in State Becha "a S. Co. 2S4 According
to these cases the requisites are,
First that the accused must have actually believed that he
immediate danger of losing his m or of sustaining great
, bodily harm.
Second that the circumstances such as would in the
5 opinion of the jury justify such belief
Third that the accused have been entirely without fault
in bringing about the difficulty.
submit that if these three requisites complied Wlth
the plea of edeense completely established and that Judge
Norton erred in endeavong to add fourhwhlch indeed
,ofN