MR. JUSTICE FRASER.
On the 5th day of April, 1921, Dr. J.C. Nicholson drove his automobile to the store of Mr. Oxner and stopped to get some gasoline for his car. While he was standing there the appellant came up. There had been bad blood between the appellant and Dr. Nicholson for some time. The evidence tends to show that appellant, when he came up, said to Dr. Nicholson: "You must stop telling your lies on me and my family"; that when Dr. Nicholson turned around he grabbed hold of appellant and appellant shot him several times. Dr. Nicholson lived a few hours and died in a hospital in Columbia, where he was carried for an operation. The appellant, Swygert, was tried for murder and convicted of manslaughter. From this conviction the defendant appealed.
I. The first assignment of error is that the presiding Judge allowed the Solicitor to lead a witness. This was within the discretion of the presiding Judge, and we see no abuse of discretion. This assignment of error cannot be sustained.
II. The next assignment of error is in regard to a dying declaration. The trial Judge must pass upon the showing. The reasons stated by the trial Judge was not a charge on the facts but a statement of his reasons for admitting the testimony, and not reversible error. The bare admission of the testimony showed that he thought that the deceased had no hope of life, and his statement added nothing to its force. It is claimed that a part of the statement did not relate to the immediate difficulty.
In State v. Petsch, 43 S.C. 148; 20 S.E., 999, we find:
"It may well be questioned whether a motion to strike out of a dying declaration such portions thereof as may be supposed to be objectionable is proper, and whether the better practice is not to move the Circuit Judge to instruct the jury to disregard such portions as may, for any cause, be deemed objectionable."
There is nothing to base the objection upon that the statements were not free and voluntary. A caution to tell the truth is not coercion.
III. The next assignment of error is that his Honor excluded the testimony of Mrs. Derrick in regard to the relations between the appellant and a young lady. The testimony was clearly irrelevant to any issue in the case and properly excluded. The mention of the name of the lady was most unfortunate, and the whole thing should have been excluded, certainly the name of the young lady. This objection cannot be sustained.
IV. It is claimed that his Honor, the trial Judge, erred in saying:
"If I make a mistake, it can be corrected, because the Supreme Court can correct any error of law I make; otherwise, if you make a mistake, there is no tribunal known to the law that can correct it."
That statement is true. While the trial Judge may set aside a verdict, that does not correct the error. It is not prejudicial error in any event, as it tended to make the jury extremely cautious. There was no reversible error here.
V. Appellant says:
"In the course of extended remarks preliminary to instructions on the law, the presiding Judge, `with all the power' that was in him, undertook to warn the jury of the dangers of the so-called `unwritten law,' and in connection therewith to exhort the jury to accept the law from the Court."
That was proper. The presiding Judge should use his entire power to clearly declare the law and to instruct the jury to obey the law as given by the presiding Judge.
The thirteenth exception is covered by what has been said.
VI. The fourteenth exception is:
"The Court erred in charging the jury `that a reasonable doubt is a doubt that grows out of the testimony in a case and for which you can give a reason from the testimony given in this case"; the error being that the appellant was entitled to any reasonable doubt arising in the minds of the jury from the lack of testimony, and the Court should have so charged."
The testimony shows, not only what is proven, but what the defects are as well.
VII. "The fifteenth exception complains that the presiding Judge so unduly and unreasonably emphasized the burden resting on the defendant to establish his plea of self-defense by the greater weight of the evidence as to overshadow the burden resting upon the State to prove the defendant's guilt beyond a reasonable doubt." The charge was clear and forceful, and not subject to this criticism. This covers the sixteenth exception, and the illustration used in the seventeenth exception was not error. Nor was there error as alleged in the eighteenth and nineteenth exceptions, when the charge is considered as a whole.
VIII. The twentieth, twenty-first, and twenty-second exceptions read:
"The Court erred in refusing to charge appellant's second request as follows: `If the defendant was without-fault in bring on the difficulty, and if the jury are further satisfied from the evidence that the defendant inflicted the wound which caused the death of the deceased, and that the circumstances in which the defendant was placed at the time of the shooting were such as to induce a reasonable belief that there was a necessity to take the life of the deceased in order to save his own life or to protect himself from serious bodily harm, the killing was excusable homicide and the jury should render a verdict of not guilty"; the error being that said request contained a sound proposition of law applicable to the issues of the case.
"(21) The Court erred in not charging the defendant's third request as follows: `If the jury find that the defendant was without fault in bringing on the difficulty, and that he actually believed that he was in immediate danger of losing his life or sustaining serious bodily harm, that it was necessary for his own protection to take the life of the deceased, and, if in the opinion of the jury the circumstances in which the accused was placed were such as would justify such a belief in the mind of a person of ordinary reason and firmness, then a case of self-defense is fully made out, and the verdict should be `not guilty'; the error being that said request contained a sound proposition of law applicable to the issues of the case.
"(22) The Court erred in refusing to charge appellant's fourth request as follows: `A man is not bound, if his life is in danger, to wait until he receives a fatal wound, or until some great bodily injury is inflicted upon him, before he can take the life of the other, provided all the elements of self-defense are present. Nor need he make or attempt to make nice calculations as to whether his life is in danger, or whether he is in danger of receiving some great bodily injury, before taking the life of his assailant, for the standard is, what will a man of ordinary firmness, reason, and prudence believe or do under such circumstances'? The error being that said request contained a sound proposition of law applicable to the issues in the case."
Each request to charge must contain a complete statement, and these requests contained only a partial statement, leaving out a reasonable means of escape. The general charge fully covered the law.
IX. The twenty-third, twenty-fourth and twenty-fifth exceptions complain of his Honor's failure to charge requests as to the right of self-defense. The presiding Judge correctly charged the law as to self-defense, and he is not bound to accept the exact language of a request to charge.
X. The twenty-sixth and twenty-seventh exceptions claim prejudicial error in his remarks on the appellant's tenth request to charge. His Honor charged the requests, and his remarks were not prejudicial.
XI. Let the exceptions be reported.
The twenty-eighth, twenty-ninth, and thirtieth exceptions are overruled. The charge taken as a whole was free from error, and not open to the inference claimed by the appellant.
The case of State v. Burdette, 118 S.C. 170; 101 S.E., 664, is not in point. In that case the effort was to prevent a specific unlawful act and in no way to avenge a past act.
XII. The last exception is that the foreman of the jury was not a resident of Lexington County but of Richland County. The residence of the juror was a matter of fact, and this Court has no jurisdiction to overrule the trial Judge.
The judgment appealed from is affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE COTHRAN concur.
MR. JUSTICE WATTS dissents.
MR. JUSTICE MARION did not participate.