State v. Green, 110 S.E. 145 (SC Supreme Court 1921)

Supreme Court of South Carolina

December 6, 1921, Decided


118 S.C. 279 | 110 S.E. 145 | 1921 S.C. LEXIS 22 | 19 A.L.R. 1431


Messrs. M. S. Connor and Wolfe & Berry, for appellant, cite: A person may dwell in two or more places: 10 A. & E. Enc. L. (2nd Ed.) 353. Place of residence is a question of intent: 107 S.C. 213. Breaking and entering a dwelling house is a felony and may be repelled by such force as is necessary: 85 S.C. 277.
Mr. A. J. Hydrick, Solicitor, and Mr. John A. Hiers, for respondent, cite: No motion for a directed verdict, which prevents consideration of question of correctness of verdict: Rule 77, Circuit Court; 83 S.C. 309; 105 S.C. 42; 110 S.C. 315. Question of criminal negligence was for jury: 29 L. R. A., 154; 15 Ann. Cas., 584 (Wash.); 14 L. R. A. (N. S.) 346. Mere breaking and entering without criminal intent is not a felony: 85 S.C. 273. Accused could not do in his absence what would have been unlawful if present: 31 Am. Rep. 1, 59 Ala. 1. Use of trap gun was criminal homicide: Whart. Cr. L., Secs. 418, 553.


Opinion by: GARY


The opinion of the Court was delivered by MR. CHIEF JUSTICE GARY.

We desire to call special attention to these facts:

The deceased was unarmed when he entered the dwelling and broke the locks. He knew the house was vacant, and that he would not encounter the defendant, or any other human being. The fact that the greater portion of the shot, which made a hole in the back of the deceased, entered a space of about 2 1-2 or 3 inches tended to show an intention on part of the defendant to kill any one who entered the house and broke the locks, without regard to the intent of the intruder. The sole object of the defendant was the protection of his property, and not his life, as he knew that his life could not be in danger if the house was entered while he was in Charleston. The testimony tends to show that the deceased entered the dwelling for the mere purpose of gratifying his curiosity.

The general rule in regard to spring guns is thus stated in 13 R. C. L., § 155:

“It seems that, according to the earlier common law, the setting of a spring gun in a dwelling house or the curtilage surrounding it was not, in itself, unlawful, and that, if a person was killed by its discharge while attempting to perpetrate a felony on the premises, no criminal liability was incurred. The later cases, however, have departed from this rule, and take the view that, if a homicide results from the discharge of a spring gun, the person setting the gun is liable to indictment for murder or manslaughter. Life may be taken, as we have seen, only in the protection and preservation of life, not when mere property rights are at stake. But, while modern authority may agree that culpability arises from death caused in this manner, there is some difference of opinion as to the grade of the offense. At common law it would seem that the slayer must be guilty of murder where it appears that the purpose was to take life. If, however, the intention was not to take life, but merely to chastise the trespasser, and to deter the offender from repeating the same, the offense may be extenuated, and no more than manslaughter. * * *”

In State v. Barr, 11 Wash. 481; 39 P. 1080, the difference in the rule is thus stated, when the spring gun is set in a house not occupied:

“The crime of burglary has been so much extended by the statutes of this State that, excepting in the case of burglary of a dwelling house when occupied by the owner or some member of his family, there is no reason why more extreme means should be allowed for its prevention than to prevent other felonies. As to what may properly be done to prevent the burglary of a dwelling house when occupied is another question. There it is not simply the damage to the property which may result from the burglary * * * that is involved, but, in addition thereto, is the question of the risk to the lives of the inmates. It is common knowledge that burglaries under such circumstances often result in the death of some of the inmates of the dwelling upon which the burglary is committed, and for that reason it might well be held that a burglary of that kind could rightfully be prevented by such means as might result in death. * * * The undisputed facts showed that there was no person in this cabin whose life could have been endangered by a burglary committed thereon; hence, if what we have said is correct, it might not be prevented by means which might be expected to destroy the life of a human being.” (Italics added.)

This case is reported in 29 L.R.A. 154, and 48 Am. St. Rep. 890.

In Simpson v. State, 59 Ala. 1 (reported in 31 Am. Rep. 1), it is said:

“The preservation of human life and of limb and member from grievous harm is of more importance to society than the protection of property. Compensation may be made for injuries to or the destruction of property; but for the deprivation of life, there is no recompense; and for grievous bodily harm, at most, but a poor equivalent.”

Section 178 of the Criminal Code is as follows:

“Every person who shall break and enter, or who shall break with intent to enter, in the daytime, any dwelling house or other house, or shall break and enter, or shall break with intent to enter, in the night time, any house, the breaking and entering of which would not constitute burglary, with intent to commit a felony or other crime of a lesser grade, shall be guilty of a felony. * * *”

In the case of State v. Clark, 85 S.C. 273; 67 S.E. 300, this Court, in construing that section, said:

“Under this statute the mere breaking of a house is not a crime, nor is the mere breaking and entering of a house, or mere breaking with intent to enter a house any crime. It is only where there is a breaking and entering, or a breaking with intent to enter, ‘with intent to commit a felony, or other crime of a lesser grade,’ that the crime denounced by the statute is complete.”

The testimony as to the intent with which the deceased broke the locks and entered the house was conflicting, thus presenting an issue which was properly submitted to the jury.

What we have already said shows that the first exception cannot be sustained. We proceed to the consideration of the other exception, which raises the question whether a case like this is to be tested by the law of self-defense.

The following language of the Court in Simpson v. State, 59 Ala. 1; 31 Am. Rep. 1, shows that the test for which the appellant’s attorneys contend is not practicable.

“The secrecy and frequency of the trespass would not justify the owner in concealing himself, and with a deadly weapon taking the life, or grievously wounding the trespasser, as he crept stealthily to do the wrong intended. What difference is there in his concealing his person, and weapon, and inflicting unlawful violence, and contriving and setting a mute, concealed agency or instrumentality which will inflict the same, or it may be greater, violence? In each case the intention is the same, or it is to exceed the degree of force the law allowed to be exerted. In the one case, if the trespasser came not with an unlawful intent–if his trespass was merely technical–if it was a child, a madman, or an idiot, carelessly, thoughtlessly entering and wandering on the premises, the owner would withhold all violence. Or, he could exercise a discretion, and graduate his violence to the character of the trespass. The mechanical agency is sensitive only to the touch; it is without mercy, or discretion; its violence falls on whatever comes in contact with it. Whatever may not be done directly cannot be done by circuity and indirection. If an owner, by means of spring guns or other mischievous engines planted on his premises, capable of causing death or of inflicting great bodily harm on ordinary trespassers, does cause death, he is guilty of criminal homicide.”

In State v. McGreer, 13 S.C. 464, the Court says:

“To make out a case of self-defense, two things are necessary: (1) The evidence should satisfy the jury that the accused actually believed that he was in such immediate danger of losing his life, or sustaining serious bodily harm, that it was necessary, for his own protection, to take the life of his assailant. (2) That the circumstances in which the accused was placed were such as would, in the opinion of the jury, justify such a belief in the mind of a person possessed of ordinary firmness and reason. It is not a question which depends solely upon the belief which the accused may have entertained; but the question is, what was his belief, and whether, under all the circumstances, as they existed at the time the violence was inflicted, the jury think he ought to have formed such belief.”

It will thus be seen that, if the defendant had been present in person, and had killed the deceased, it would have been necessary for him to show by way of defense that the circumstances were such as were not only sufficient to justify a person of ordinary firmness and reason in believing that he was in danger of losing his life, or suffering serious bodily harm, but that he himself so believed. In using the spring gun it was impossible for him, at the time of the killing, to comply with these requirements. His Honor, the presiding Judge, properly charged the jury in regard to the setting of spring guns.

Appeal dismissed.

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