State v. Davis Brief of Appellant

    T h e State of South Carolina 
IN THE SUPREME COURT

APPEAL FROM FAIRFIELD COUNTY 

H o n . J. K. H en ry , Judge

THE STATE, Respondent, 

vs.

JIM DAVIS, Appellant.

BRIEF OF APPELLANT

J. L yles G l e n n , Jr ., Solicitor, of Chester, S. C., 
W . D. D ouglas, of Winnsboro, S. C.,

Attorneys for Respondent.

L. G. Southard , of Spartanburg, S. C.,
Attorney for Appellant.



INDEX

P age
St a t e m e n t ..........................................................................................  3

As to th e  U ndisputed F a c t s .......... ...................................  4

E xceptions—
Change of Venue.............................................................. 7
As to the Admissibility of Testimony .........................  9
Refusal of Motion to Direct a Verdict.........................  12
As to the Rejection of Testimony for Defendant......... 14
As to Res Gestae...........................................................   19
As to His Honor’s Refusal to Direct a Verdict at the

Close of the Whole Case, Etc.................................. 21
As to the Charge on Murder and Malice, Etc.............. 22
As to Errors in Charging on Appearances...................  26
Exceptions Charging Errors on the Part of His Honor

in Charging the Law of Self Defense.................  27
As to the Charge on the Law of the Castle.................  33
As to Requests to Charge .............................................  39

Co n c l u s io n .........................................................................................  41



STATEM ENT
The charge was murder; appellant was tried before Judge 

J. K. Henry and a jury in Fairfield County, and he was con­
victed of murder with recommendation to mercy.

There are fifty-two exceptions. They will be grouped to­
gether in a number of instances, so that there are not so many 
questions to be considered. The exceptions go to the refusal 
to change the venue, the admission of testimony, the rejection 
of testimony, errors in hte charge of murder, self defense, the 
law of the castle; the failure to charge correctly the law of 
murder, self defense, and the law of the castle, the refusal to 
grant a directed verdict of not guilty, both at the close of the 
State’s, case and at the close of the whole case, the refusal to 
strike from the indictment the charge of murder, and if sub­
mitted at all, then to be submitted on the charge of man­
slaughter, the refusal to grant a new trial, and from the charge 
as a whole.

Appellant was sentenced to life imprisonment. Due and 
legal notice to appeal to this Honourable Court was served and 2 
filed.

The shooting occurred in Fairfield County, in the sixth 
circuit, and death occurred in Richland County, in the fifth 
circuit. Motion was made on a verified petition of Jim Davis, 
the appellant, for a change of venue. This petition was sup­
ported by an affidavit of E. G. Southard, attorney for Jim 
Davis, and the Court is asked to read and consider both; it will 
be seen that the facts therein stated are in no wise contradicted.

Testimony purporting to be and prove a dying declaration 
was offered by the State; objection was made that the same 
in no wise met the test; His Honor admitted the same. Testi­
mony was offered by the State from Jack Jewett and Willie 
Worthy that they had married children of appellant, this was 
objected to, objection overruled, and testimony admitted.

Testimony on behalf of the appellant as to just what was 
said and just what occurred between Mr. G. E. Martin and 
appellant a moment or so before the shooting was offered 
on two grounds, (a) to show the mental condition of the ap­
pellant just before and just at the time of the homicide; and, 4 
(b) as a part of the res gestae. His Honor refused to admit 
this testimony. Errors were made in the charge and in refusals 
to charge.



4 SUPREME COURT

The State vs. Jim Davis

AS TO THE UNDISPUTED FACTS
The attention of the Court is invited to the Statement of the 

Case, for it is our contention that the agreed facts entitle us to 
a reversal under Rule X X V II o f this Court. From the ad-

5 mitted facts, appellant is entitled to a verdict of Not Guilty.
The Satement shows that the deceased was a white man, 

of a large, prominent, influential, and widely scattered family, 
of Fairfield County. That the shooting was done in Fairfield 
County, that death occurred in Richland County. That large 
bands of armed men hunted appellant, that sentiment was 
strong against him, that the Governor, as a precautionary 
measure, confined the appellant in the penitentiary until some­
time in February.

The Statement further shows that appellant is fifty-one 
years of age, that he has lived all of his life in Fairfield County, 
having been reared by Captain John W . Eyles, the venerable 
Clerk of Court for Fairfield County, that he had never in his 
life heretofore been in trouble of any kind.

The Statement further shows that the appellant lived on 
the lands of Mr. D. R. Martin, with his wife and family, and 
had no trouble until a road gang camped within about one-half 
mile from his home. That he had two youthful daughters,

7 one about thirteen years of age, another about fourteen years 
of age; and that on Sunday, some few days before the homi­
cide, these two children with another negro girl of the com­
munity were surreptitiously taken by three negro boys, one 
of whom was Jack Jewett, and were by them taken to Columbia 
where they slept with them, and from thence to Greenwood, 
and there kept by them for several days, and then were taken 
back to appellant’s home, where he received them back under 
the representation to him that they were married and under

8 their promise to produce the marriage certificates.

The Statement further shows that there never existed 
betwixt Mr. Scott and appellant any cross words or ill feelings, 
that the only reason why appellant fired was to repel an in-



SUPREME COURT 5

Appeal from Fairfield County

vasion of his home, to keep Mr. Scott out of his home and 
yard, and to keep him from taking his children out of his home, 
in defense of himself and family, and to keep invaders and 
intruders out of his home, and to prevent them from taking 
his daughters out of his home, to expel Austin Scott and Jack 
Jewett and Willie Worthy from his home. The sole con- 9 
tention of the State was that at the instant the shot was fired, 
it was not necessary to have fired it, as though appellant could 
divide seconds into fractions.

The Statement further shows that on Monday morning, the 
morning of the homicide, that appellant had a conversation with 
Jack Jewett and Willie W orthy; they having spent the previous 
night at his home. That they went to the camp, and shortly 
thereafter they returned to the home of appellant in a truck 
for the two girls, that when they drove up that appellant was 10 
in his front yard with his shotgun in his hands, that at that 
time he told them that they could never come into his house 
again, that if they desired to talk to the girls that they could 
do so from a designated spot on the outside of the fence. That 
at that time he told them again that he was not going to let 
his girls go off with them to Georgetown County, “ that he 
had rather follow them to the graveyard than to see them live 
in a negro camp.” That the boys talked to the girls a moment 
or so, got back on the truck, and for a second time went u  
back to the grade camp.

The Statement further shows that at this instant appellant 
sent his son for his landlord, Mr. D. R. Martin, to come to his 
house at once; that just before that he had sent for Mr. G. E. 
Martin, his nearest neighbor, in consequence of a communi­
cation he had had with Robt. Duffey, appellant saw Mr. G. E. 
Martin coming up the public road, he ran out and had a con­
versation with him, then ran back to his home. His son had 
just returned from Mr. D. R. Martin’s.

The Statement further shows that when Jack Jewett and 
Willie Worthy reached the camp there was Mr. Scott. They 
told him that they were unable to get their wives, that Jim



6 SUPREME COURT

The State vs. Jim Davis

Davis would not let them go, and that he would not let them 
go into his house. He, J. Austin Scott, then told them that he 
would go and get them. Turning to a man, he inquired of him 
where was his pistol. Upon being told that it was in a handbag, 
he went and got it. It was a 38. Special Smith & Wesson.

13 Broke it down, examined it, saw that it had four good car­
tridges in it, inquired for more cartridges, upon being informed 
that there were no more, in speaking of going to appellant’s 
home after these girls, said: “ This is enough to bring two or 
three back with.” Got on the truck with the two negro boys, 
told them to drive, and started for Jim Davis’ house with them.

The Statement further shozvs that to go to appellant’s home, 
the truck had to pass by Mr. D. R. Martin’s residence; that 
Mr. Martin had just started to appellant’s home in response

14 to his message to come when the truck approached Martin’s 
house. That the truck stopped, there was a conversation, the 
truck moved on, Martin following it, walking; that he met 
Mr. G. E. Martin, that he turned around, and that the two 
Martins started to appellant’s home following the truck.

The Statement further shows that appellant’s home was 
six hundred feet off the public road, and that there was only 
one private road down to his house; that the truck drove down 
this private road, went down to the house, turned around and

15 headed out toward the public road and stopped, and that off 
of it jumped / .  Austin Scott, Jack Jewett and Willie Worthy. 
That their business now was to take these children of ap­
pellant’s.

The Statement further shows that there is a fence in front 
of appellant’s dwelling and attached to the corner of the house. 
The Court’s attention is invited to the photographs incorporated 
in the Case. That the front gate was less than seventeen feet 
from appellant’s front door. That when the truck drove up,

16 appellant was standing in his front door with his shotgun in his 
hand. That when Mr. Scott jumped off of the truck he had 
both of his hands in his front trousers pockets and that he 
and Willie Worthy and Jack Jewett simultaneously advanced



SUPREME COURT 7

Appeal from Fairfield County

on appellant’s dwelling house; the negro boys, however, halted, 
but Scott kept advancing, with both hands in his pockets, 
around the fence to the gate and into the gate, less than 
seventeen feet from appellant’s door, when the shot was fired 
which resulted in Mr. Scott’s death. That at that time there 
was in appellant’s dwelling his wife and children, the youngest 17 
was three years of age, Sarah Rabb, who was to slip away 
and go with the negroes to Georgetown, and Robt. Dotson.

The Statement further shows that there were several eye 
witnesses, and Mr. Southard moved that the State be required 
to put all eye witnesses up. He stated that they would not talk 
to him; hence, he was in no position to know just what they 
would swear.

The Statement further shows that proper motions were 
made for a directed verdict of Not Guilty at the close of the 18 
State’s Case, which motion was refused; and, also, a motion 
was made to eliminate murder from the indictment, which 
was refused. At the close of the whole Case, a motion was 
made for a directed verdict of Not Guilty, which was re­
fused, and then motion was made to eliminate murder, and 
this was refused.

Hence, from the admitted facts of the Statement of the 
Case, it is most respectfully urged that appellant’s defenses 
are fully admitted, and under Rule X XV II, this Court should 19 
order a verdict of Not Guilty entered, and he should be dis­
charged.

EXCEPTIONS

C hange; of V bnue;

Section III of the Code of Criminal Procedure, 1922, pro­
vides that where a person is shot in one county and dies thereof 
in another, the defendant may be tried in either county. In 20 
State vs. McCoomer, 79 S. C. 65, the Supreme Court held 
that the offense is to be considered committed in both counties 
and is triable in either.



8 SUPREME COURT

The State vs. Jim Davis

On the face of the indictment, it is alleged that the shooting 
was in Fairfield County, that death resulted in Richland County. 
Under the law, the trial could have been in either county. 
Under the showing made before the Circuit Judge, it is sub­
mitted that in Fairfield County a fair and impartial trial could 
not be had. In addition to a full and complete showing made 
by the verified petition and the affidavit of Mr. Southard that 
the appellant could not receive a fair and impartial trial as is 
contemplated by law and guaranteed to him by the Constitution, 
the situation was peculiar in that it was made to appear that 
Austin Scott and the solicitor were related, and that that fact 
was generally known in Fairfield County. It could not be kept 
out of the case, the personal element, the solicitor being a 
Judicial Officer of the Court, and the appellant charged with 

22 slaying a kinsman of the solicitor. Mr. Glenn in nowise is 
subject to criticism. So far as his attitude during the trial 
was concerned, no exception could be taken. Yet the public 
generally knew it, the jurors knew it.

Moreover, the showing was that the deceased was a member 
of a large, prominent, influential family; at one time an officer 
of the county, having relatives widely scattered in the county 

- who were active in the prosecution of the Case, one of whom 
was at the time of trial a member of the rural police force of 
Fairfield County. That appellant had sought the services of 
attorneys of the Winnsboro Bar, who expressed themselves 
favorable to his defense, but who declined to defend for the 
reason that it would injure their practice, although the family 
of deceased hired an attorney of Winnsboro to prosecute. That 
Fairfield County had been and was divided over the Isenhour- 
Hood battle, wherein Scott was a member of the Hood faction, 
and was charged with having been the one who killed Mr. 
Isenhour. The strong sentiment against appellant, rushing 
him to the penitentiary—these and the other facts shown 

24 should have impelled the Judge to have moved the trial of this 
case to another county or to Richland County.

It is conceded that the question is primarily addressed to 
the discretion of the Presiding Judge, but his discretion must



SUPREME COURT y

Appeal from Fairfield County

be judcial and not arbitrary. State vs. Jackson, 110 S. C. 273.
Affidavits on the other side admitted everything charged by 

the appellant, they simply stated that now it was thought that 
a fair trial could be had. However, no facts were stated by 
the State. This covers Exception One.

As to th e  A d m issibility  of T estim ony

In Exception Two is challenged the correctness of His 
Honor’s rulings in admitting Dr. Wallick’s testimony in 
reference to a conversation which he claimed he had with 
deceased as a dying declaration.

“ To render these declarations admissible, it was only 
necessary that the trial judge should be satisfied: First, that the 
death of the deceased was imminent at the time the declara- 2*> 
tions were made; second, that the deceased was so fully aware 
of this as to be without hope of recovery; third, that the 
subject of the charge was the death of the declarant, and the 
circumstances of the death were the subject of the declarations.”

State vs. Petsch, 43 S. C. 148.
State vs. Faile, 43 S. C. 52.
State vs. Taylor, 56 S. C. 360.
State vs. daggers, 58 S. C. 360.
State vs. McCoomer, 79 S. C. 63. 27
State vs. Gallman, 79 S. C. 229.
State vs. Franklin, 80 S. C. 332.
State vs. Smalls, 87 S. C. 551.
State vs. Long, 93 S. C. 502.
State vs. Hall, Advanced Sheets, Opinion by Cothran, /■

In the case of Stae vs. Smalls, 87 S. C. 550, it was held: 
“ These cases further declare that the Circuit Court primarily 
decides whether these conditions exist, and its rulings will not 
be disturbed unless clearly incorrect and prejudicial.”  And to 28 
like effect are State z>s. McCoomer, 79 S. C. 63, State vs. 
Franklin, 80 S. C. 332. However, in the case of State vs. 
Belcher, 13 S. C. 462, the rule was stated to be as follows:



10 SUPREME COURT

The State vs. Jim Davis

“ They are admissible from the necessity of the case, and 
when made in extremity, when the party is at the point of 
death and is conscious of it, when every hope of this 
world is gone, and every motive to falsehood is silenced
by the most powerful considerations to speak the truth.”

29
Again in State vs. Thomas, 103 S. C. 316, the Court said: 

“ The deceased and the witness talked about death, but 
men may talk about death who do not think they are about 
to die.”

Again in State vs. McBvey, 9 S. C. 208, the rule is stated: 
“ And the declarant was so fully aware of this (mean­

ing death) as to be without any hope of life.”
Again in State vs. Riley, 98 S. C. 386, the Court said:

30 “ Considered inversely, the dying declaration was not 
competent, it did not sufficiently appear that death was 
imminent and that the declarant had abandoned all hope 
of recovery. Mr. McDowell, who took the declaration, is 
a lawyer and magistrate. lie  warned the declarant, ‘he 
must be certain he was going to die.’ The answer was, 
‘Yes, I am going to die. I may get up for a few days, 
but this wound will kill me.’ At another time the witness 
testified that the declarant said, ‘Yes, I may get up for a 
few days, but this shot will eventually kill me.’ The wit-

31 ness further testified, ‘He didn’t say that he would die 
from his wound any time soon, nor did he state any time 
at which he would die from it.’ ”

Now, testing Dr. Wallick’s testimony as to the claimed con­
versation, it is apparent that His Honor’s ruling was clearly 
incorrect and prejudicial. It did not appear that death was 
imminent, neither did it appear that the declarant was so 
conscious of hnminent death as to be without any hope of 
recovery. Here is exactly what the doctor said Scott said:

32 “ I don’t believe I am going to make it.”  He did not say that 
death was even once mentioned by Scott or anyone else. He 
stated that Scott had a doubt as to whether or not he would 
make it.



SUPREME COURT 11

Appeal from Fairfield County

The words show that the declarant had not abandoned all 
hope. “ I don’t believe I am going to make it,”  shows that in 
this man’s mind, if he was thinking of death, that it was 
questionable with him whether he would make it or not. The 
test therefore had not been met. His Honor was clearly in 
error in admitting this.

Exception Three charges error in striking out the testimony 
of Sheriff MacFie, wherein he stated that J. Austin Scott bore 
a bad reputation for turbulence and violence amongst negroes 
in Fairfield County. I understand the rule as laid down in 
State vs. Dean, 72 S. C. 74, State vs. Boyd, 126 S. C. 300, and 
a large number of cases that where the reputation of a person 
deceased is attempted to be shown that specific acts of violence 
cannot be shown; but where one has a bad reputation for 
turbulence and violence amongst negroes, this is general reputa- 34 
tion within a class, and particularly is it competent where the 
defendant belongs to that class. I have found no case hold­
ing this, but it appeals to me from the standpoint of right and 
reason.

Exceptions Four and Five go to the admissibility of the 
testimony of Jack Jewett and Willie Worthy, in that His Honor 
permitted them to testify that they were married to Sarah and 
Clara respectively, the children of appellant. If the parties 
were married, then the father had every right to know that 
they were, and proof thereof should have been submitted by 
producing the record of the Judge of Probate for Greenwood 
County. If they were living in a state of concubinage, then 
the father had every right to keep his daughters from going 
to Georgetown County. And if they were not married, the 
negro men were guilty of statutory rape. The admission was 
highly prejudicial. The rights of a father were at stake, 
and since marriage in South Carolina is entered into only 
after a license is issued, and since the law requires that the 
proof of the marriage must be recorded, the record was the 36 
best evidence.

The reason why the testimony was offered which is referred 
to in Exception Six was to show just what conclusion a man



12 SUPREME COURT

The State vs. Jim Davis

of ordinary reason and prudence would reach under the facts 
and circumstances. It was competent.

R efusal of M otion to D irect a  V erdict
37

If all of the evidence is susceptible of but one inference, 
and if the defenses of the defendant are established by it, then 
it becomes the duty of the Presiding Judge upon motion to 
direct a verdict of Not Guilty. Exception Seven challenges 
His Honor’s ruling on a motion for a directed verdict.

Only one inference could have been drawn from the testi­
mony. The defendant was in his own home, where he was 
entitled to be, with his wife and children. Pie had tried in 
every way possible to prevent any attack from being made on

38 it, and to keep all intruders and aggressors out. The deceased 
knew that He was not wanted there and on this particular 
mission, so much so, that when he started on it, after thoroughly 
arming himself, he exclaimed, “ This is enough to bring two 
or three back with.”  He had just been told that the old man 
would not allow these negroes to go into the house, neither 
would he permit the girls to come out of the house. So 
opposed was he to their going, under the circumstances, that 
to express it in his own words, coming from the State’s

39 witness, he told them that he had rather follow his girls to 
the graveyard than to see them living in tents in a negro road 
camp. The boys had been for the girls, and had been re­
fused them by their father, and this was told to Mr. Scott. 
Yet he determined that he would go and get them, and he took 
along a 38 Special Smith & Wesson to bring them back with. 
The old man had sent for his landlord, and his son, whom He 
had sent, had returned; and he knew that the truck had to pass 
Mr. Martin; he had sent for his white neighbors. Yet, in spite 
of warnings, refusals, orders, and protestations, the truck was

40 back with the same negro boys, he had just a few moments 
before ordered away, with J. Austin Scott. Simultaneously, all 
three jumped from the truck and advanced in a threatening 
attitude onto his house. Two stopped, but Scott kept advanc-



SUPREME COURT 13

Appeal from Fairfield County

ing to the fence, to the gate, inside of the gate. Must this man 
divide seconds into fractions ? Already the aggressor is within 
the gate, less than seventeen feet from the front door, still in 
a threatening attitude. He is not there as a licensee, or as an 
invited guest. Scott knew that his presence was not desired, 
and he knew that he had no permission to be thus advancing 41 
onto this man’s home, either by implication or by expression.
No invitation had been extended him to come, yet here he was. 
What must Jim Davis do? Must he retreat? The law says 
“ no.”  What would a man of ordinary reason and firmness 
conclude? What did Jim Davis conclude? Had he not at this 
point met the test under the law of the castle, as declared 
by Justice Cothran in State vs. Bradley, 120 S. C. 240? 
Ordinarily it is a jury question, but where the facts and cir­
cumstances point only one way, then the law is different, and 42 
it is the facts which breed the law. Must a parent stand in 
his door and plead with one not to come into his dwelling and 
take his children out, even though his two daughters have been 
debauched and ruined, and then fight the elements of heat and 
cold and mud and dirt and rock for the balance of his life 
for the State, and like poor old King Dear say:

“ Spit, fire! Spout, rain !
Nor rain, wind, thunder, fire, are my daughters;
I tax not you, you elements, with unkindness ;
I never gave you kingdom, call’d you children,
You owe me no subscription; then let fall 
Your horrible pleasure; here I stand, your slave,
A  poor, infirm, weak and despised old man,
But yet I call you servile ministers—- 
That have with two pernicious daughters join’d 
Your high-engendered battles ’gainst a head 
So old and white as this. O ! O ! ’Tis foul.”

Under no aspect of the State’s case was there murder.
His Honor should have on motion eliminated the charge of 44 
murder, and if submitted at all, the case should have been 
submitted only on the question of manslaughter. This goes 
to the Eighth Exception.



14 SUPREME COURT

The State vs. Jim Davis

As to th e  R ejection  oe T estim o n y  for D efendant

Exceptions Nine and Ten go to practically the same ques­
tions, and they will, therefore, be considered together. The 
evidence sought to be introduced covered by these two ex-

45 ceptions was offered on two grounds; to wit, as a part of the 
res gestae, and to explain and show the mental condition of the 
defendant at the time.

The Court will recall that information had been given de­
fendant by Robt. Duffey the night before of the coming of 
J. Austin Scott, and for the exact purpose for which he did 
later come; of the sending after Mr. G. E. Martin before 
breakfast the next morning, the morning of the homicide, by 
the defendant; of the return of Jack Jewett and Willie Worthy 
in the truck for the girls, of the defendant’s refusal to permit

46 them to go into his yard or house, or the negroes talking with 
the girls at the designated window, and of the departure of the 
boys, Jack Jewett and Willie Worthy, after Mr. G. E. Martin 
had gotten in sight, and of the defendant at the moment 
sending for Mr. D. R. Martin, his landlord. At this instant, 
defendant ran to the road and met Mr. G. E. Martin.

It was instantaneous, spontaneous, contemporaneous; it was 
a part of it, and while the negroes, Jack Jewett and Willie 
Worthy, were gone for J. Austin Scott—they were just turn-

47 ing into the public road. “ Mr. Martin, come up to my house.
I am having trouble with those boys about taking off my girls ; 
the girls say that they don't want to g o ; and the boys say that 
they are going' back, and come back and raise hell or have a 
damn war one.” What was said between Mr. Martin and 
the defendant at that instant about his being in a hurry to get 
to the camp, that he would see the parties and stop them, and 
about Mr. D. R. Martin seeing them and stopping them, and that 
he wouldn’t let them come to his home, certainly was compe­
tent to show the mental condition of the defendant just a few

48 moments before the homicide, and to explain his acts and con­
duct just at the moment, and it was a part of the transaction, 
tended to elucidate it, and was so near to it as reasonably to 
preclude the idea of deliberate design. It was not the narra-



SUPREME COURT 15

Appeal from Fairfield County

tion of a past occurrence, but it was a part of the thing itself 
while it was in the period of formation and being.

Under the head of statements by an accused. Prof. Wig- 
more, in his work on Evidence, paragraph 1732, vol. 3, 2nd 
edition, says:

“ Statements by an accused person may involve instances 49 
of almost every one of the preceding sorts, but it is convenient 
to consider them in one place, in order that the necessary dis­
criminations may be made.

“ In the first place, any and every statement by an accused 
person, so far as not excluded by the doctrine of confessions 
or by the privilege against self crimination, is usable against 
him as an admission. Thus, it is unnecessary for the prose­
cution to establish the propriety of such statements under the 
present Exception because they would be in any case receivable 50 
as admissions. For this reason, since a person’s own state­
ments are not receivable in his favor as admissions, there has 
been a strong judicial tendency to ignore the bearings of the 
present Exception for statements offered in favor of the ac­
cused. It is therefore proper to inquire how far the present 
principles are after all available for such a purpose.

“ (1) Statements of design or plan, as already noticed, are 
in general admissible so far as the design or plan is relevant to 
show the doing of the act designed. Accordingly, it has never 
been doubted that the threats of an accused person are ad­
missible to show his doing of the deed threatened, so also the 
threats of the deceased, on a charge of homicide, are by most 
Courts admitted to show the deceased to have been the ag­
gressor. Upon the same principle, the expressions of plan, 
by the accused, not to do the thing charged, or to do a different 
thing, are equally admissible.

“ (2) Statements before the act, asserting malice or hatred, 
are always received against an accused, except so far as the 
time of feeling is so remote as to make it irrelevant- Is there 52 
any reason why prior statements in favor of the accused, 
for example, of good feeling toward the injured, or of fear 
or him as an aggressor, should not be equally admissible ? Con-



16 SUPREME COURT

The State vs. Jim Davis

duct offered as circumstantially evidential does not seem to be 
objected to. But statements asserting directly the existence of 
such feelings are by some Courts treated as inadmissible, so 
far as they do not accompany the very act charged.

53 “ It has been argued that the party must not be allowed to 
make evidence for himself.’ But this objection applies equally to 
many classes of statements under the present Exception, and 
is yet not thought of as fatal. Moreover, the notion of ‘making,’ 
that is, ‘manufacturing’ evidence, assumes that the statements, 
are false, which is to beg the whole question.

“ Then it is further suggested that at any rate the accused, 
if guilty, may have falsely uttered these sentiments in order 
to furnish in advance evidence to exonerate him from a con­
templated crime. But here the singular fallacy is committed

54 of taking the possible trickery of guilty persons as -a ground 
for excluding evidence in favor of a person not yet proved 
guilty; in other words, the fundamental idea of the presumption 
of innocence is repudiated. We elaborate this presumption in 
painful and quibbling detail; we expend upon it pages of 
judicial rhetoric; we further maintain, with sentimental ex­
cess, the privilege against self-crimination; in short, we ex­
haust the resources of reasoning and strain the principles of 
common sense to protect an accused person against an assump-

55 tion of guilt until the proof is irresistible; and yet, at the 
present point, we throw these fixed principles to the winds and 
make this presumption of guilt in the most violent form. 
Because (we say) this accused person might be guilty, and 
therefore might have contrived these false utterances, there­
fore we shall exclude them, although without this assumption 
they indicate feelings wholly inconsistent with guilt, and al­
though, if he is innocent, their exclusion is a cruel deprivation 
of a most natural and effective sort of evidence. To hold 
that every expression of hatred, malice and bravado is to be

56 received, while no expression of fear, goodwill, friendship, or 
the like can be considered, is to exhibit ourselves the victims 
of a narrow whimsicality, which might be expected in the 
tribunal of a Jeffreys, going down from London to Taunton,



SUPREME COURT 17

Appeal from Fairfield County

with his list of intended victims already in his pocket, or on a 
bench ‘condemning to order,’ as Zola said of Dreyfus’ military 
judges. But it was not to be anticipated in a legal system 
which makes so showy a parade of the presumption of inno­
cence and the rights of the accused. This question begging 
fallacy about ‘making evidence for himself’ runs through much 
of the judicial treatment. There is no reason why a declaration 
of an existing state ,of 'mind, if it would be admissible against 
the accused, should not also be admissible in his favor, except 
so far as the circumstances indicate plainly a motive to deceive.”

Our Court has always recognized that the mental attitude of 
the parties in a homicide was relevant and competent, and 
material on trial.

In the case of State vs. Smith, 12 Rich. 430, Justice John­
stone : “ I have been accustomed to think that the circumstances 
that surround a man always serve to throw light not only upon 
his language (which is known in law in another forum, with 
which I am more familiar than with this), but also upon his acts. 
The words uttered, the acts done, the language written, speak 
for themselves, and are the only subject for interpretation; but 
they are read and interpreted in the light of the circumstances 
which prompted them, and to which they always tacitly refer. 
The same act done under different circumstances may have 
a different meaning. If a man slays another in battle, he is a 
hero and a patriot. If, while repelling a criminal and dan­
gerous assault on his person or his house, it is a defensive 
and rightful act. If it is done under that degree of provoca­
tion which would work up the infirmities of a man, proper 
social feelings, and of peaceable disposition, to the hasty 
shedding of blood, it is manslaughter. The circumstances must 
determine the intention and the case.

“ I do not mean the mere circle of facts immediately sur­
rounding the parties at the moment of the fatal act, but the 
facts more or less remote, according to the case, which may 
reasonably be supposed to have been in the minds or contem­
plation of the parties at that time; the facts to which their 
conduct may be supposed to have tacitly referred the facts;



18 SUPREME COURT

The State vs. Jim Davis

which may be reasonably intended to have prompted the 
fatal act.”

Language and conduct of the defendant fifteen or twenty 
minutes before the killing are competent to show his state 
of mind.

State vs. Miller, 73 S. C. 277.
State vs. Trailkill, 73 S. C. 317.
State vs. Smalls, 73 S. C. 517.
Wharton Criminal Evidence, 8th edition, Sections 30-47.
People vs. Molyneux, 62 L. R. A. 193, note.
4 Elliot, on Evidence, Section 3029.

See also—
State vs. Bright, 89 S. C. 231.

62 “Under the plea of self-defense, the defendant had the 
right to introduce any testimony which tended to show that 
immediately before the fatal encounter, deceased was in a 
vicious humor, not only towards the defendant himself, but 
also towards others, for that tended to throw light upon the 
question, ‘Who was at fault in bringing on the difficulty?’ 
Which was of vital importance. That is one reason for the 
admission of evidence of uncommunicated threats against the 
defendant (State vs. Pails, 43 S. C. 61), and of the general 
behavior of the accused immediately before the difficulty in

63 such cases.”
State vs. Springfield, 86 S. C. 323.

Also see—
38 L. R. A., N. S., 1061, note.

“ Either the State or the defendant had the right to show 
by words, acts or deeds the mental attitude of each other at 
the time of the killing.” State vs. Lemacks, 98 S. C. 509.

“ But the circumstances properly throw light upon his mental
64 attitude in the matter, which is the gist of the crime of murder.”

State vs. Culbreath, 113 Southeastern 476.
See also—

State vs. Rowell, 75 S. C. 494.



SUPREME COURT 19

Appeal from Fairfield County

In the recent case of State vs. Gregory, 127 S. C. 97, the 
Court held that the words, acts and deeds of the deceased 
shortly before the homicide were competent to show the state 
of mind of the accused at the time of the fatal encounter.

See also the recent case of State vs. Hill, 129 S. C. 169, 
Justice Cothran wrote the opinion: “A similar question in 
reference to the conduct of the defendant has recently been 
considered by this court in the case of State vs. Gregory, in 
which it is declared that the conduct, actions, and general 
demeanor of the accused immediately before the killing is ad­
missible to show that he was in a vicious humor, as bearing 
upon the great issue in the case, his frame of mind at the time 
of the homicide.

As To Res Gbsta®
The rule in admitting statements of participants in a dif­

ficulty, or bystanders, whether the statement be self-serving 
or otherwise, is closely related to the “mental condition” theory. 
The general principle is based on experience that, under cer­
tain external circumstances of physical shock, a stress of 
nervous excitement may be produced which stills the reflective 
faculties and removes their control, so that the utterance which 
then occurs is a spontaneous and sincere response to the actual 
sensations and perceptions already produced by the external 
shock. Since this utterance is made under the immediate and 
uncontrolled domination of the senses, and during the brief 
period when considerations of self interest could not have 
been brought fully to bear by reasoned reflection, the utterance 
may be taken as particularly trustworthy (or, at least, as lack­
ing the usual grounds of untrustworthiness), and thus as ex­
pressing the real tenor of the speaker’s belief as to the facts 
observed by him; and may, therefore, be received as testimony 
to those facts. In the reception of this evidence, however, 
there are certain legal principles which are uniformly ob­
served: First. It follows that the death, absence, or other
unavailability of the declarant need never be shown— a proposi-



20 SUPREME COURT

The State vs. Jim Davis

tion never disputed. Second. The statement must have been 
made under circumstances calculated to give some special trust­
worthiness to it, and thus to justify it from the ordinary test 
of cross-examination on the stand. Third. There must be 
some shock, startling enough to produce this nervous excite-

69 ment, and render the utterance spontaneous and unreflecting. 
Fourth. The utterance must have been before there has been 
time to contrive and misrepresent. It need not be strictly con­
temporaneous with the exciting cause, although there can be 
no definite and fixed limit of time; each case must depend upon 
its own circumstances- The main element is that it is spon­
taneous. Fifth. The utterance must relate to the circumstances 
of the occurrence preceding it.

Wigmore on Evidence, Vol. Ill, 1923 Edition.
70 State vs. Belcher, 13 S. C. 459.

State vs. Talbert, 41 S. C. 526.
State vs. Arnold, 47 S. C. 9.
Gosa vs. Southern Ry. Co., 67,S. C. 347.
State vs. McDaniel, 68 S. C. 304.
State vs. Lindsay, 68 S. C. 276.
Williams vs. Southern Ry. Co., 68 S. C. 369.
Nelson vs. G. & N. R. Co., 68 S. C. 462.
State vs. Way, .76 S. C. 91.

71 And as stated in State vs. McDaniel, 68 S. C. 304, “ Ques­
tions of this kind must be largely left to the sound discretion 
of the trial judge, who is compelled to view all the circum­
stances in reaching his conclusions, and this Court will not 
review his ruling unless it clearly appears from the undis­
puted circumstances in evidence that the testimony ought to 
have been admitted.” See also State vs. Way, 76 S. C. 91, and 
other cases. Discretion, however, means judicial discretion. 
Hence, the question is, does it clearly appear from the undis­
puted circumstances in evidence that the testimony ought to

72 have been admitted? The facts and circumstances in evidence 
up to this particular point are undisputed, the information 
received on the previous night, sending for G. E. Martin 
early and before breakfast the next morning, the morning of



SUPREME COURT 21

Appeal from Fairfield County

the homicide, the return of the boys in the truck after the 
girls, the refusal of defendant to admit them into his dwelling, 
and requiring them to talk from a designated place, the leaving 
of the boys in the truck, the apprehension of defendant, the 
approach of G. E. Martin at that instant— it was a cry of 
despair, an expression of great fear, a plea for help, an as­
surance that they would be stopped from returning—to his 
curtilage and to his dwelling, it clearly showed his mental 
condition, his state of mind, and it was a part of the thing 
itself, and should have been admitted under both grouhds. 
These Exceptions should be sustained.

As to His H onor's R efusal to D irect a  V erdict at  th e

Close of th e  W hole Case, and  F a ilin g  in  T h a t  to 74 
Strik e  M urder F rom th e  I n d ictm en t .

Exception Eleven charges error on the part of His Honor 
in refusing to direct a verdict of Not Guilty. It is submitted 
that at the close of the whole case, the question of defendant’s 
being guilty of anything or not guilty had become academic. 
Only one inference then could be drawn from the testimony.
Yes, defendant fired the shot. He had prepared himself to, 
but he prepared only after he learned that war had been de­
clared—and that hell would be raised at his house, about his 75 
children—and he fired only after the raising had been started, 
and the battle line had been formed—to defend himself, his 
children, and his castle, and he shot only in defense of him­
self, his children, and his castle, and that was the only infer­
ence that could have been drawn. He had brought himself 
within every element of self defense, and of the defense of 
his castle. It was not a jury question, but it was a law question. 
Certainly, under the facts and circumstances of this case, a 
verdict of not guilty should have been directed, but failing in 
that, it is respectfully submitted that there was no testimony 
justifying a submission to the jury of murder, the error of 
which is taken in Exception Twelve.



22 SUPREME COURT

The State vs. Jim Davis

As to th e  C harge on M urder and  M alice , and  th e  F ailure

of th e  Judge to C harge th e  L a w  A pplicable .

Exceptions Thirteen, Fourteen, Fifteen, Sixteen and Seven­
teen challenge the correctness of His Honor on his Charge, and

77 allege error on the part of His Honor in not charging the law 
applicable thereto, and further, that he invaded the province 
of the jury. And they will be discussed somewhat together.

If an intentional killing is proved and no more, the law 
implies malice, and hence, in such event, a Judge could charge 
the jury that, “ If it is in the killing itself, the malice, it makes 
murder,” and be correct.

State vs. Jones, 29 S. C, 201.
State vs. Alexander, 30 S. C. 74.
State vs. Mason, 54 S. C. 240.
State vs. Ariel, 38 S. C. 221.
State vs. Henderson, 74 S. C. 477.
State vs. Jones, 74 S. C. 457.
State vs. Foster, 66 S. C. 469.
State vs. McDaniel, 68 S. C. 304.
State vs. Rochester, 72 S. C. 195.
State vs. Jones, 86 S. C. 17.

However, a Charge may be erroneous, although the propo­
sitions of which it is composed may severally be conformable

79 to recognized authority, if in its scope and bearing in the case 
it is likely to lead to a misconception of the law.

State vs. Coleman, 6 S. C. 185.
State vs. Rochester, 72 S. C. 194.

The rule is, thus stated in State vs. Hopkins, 16 S. C. 153: 
“ There is no doubt whatever of the isolated proposition that the 
law presumes malice from the mere fact of homicide, but there 
are cases, as made by the proof, to which the rule is inapplica­
ble. When all of the circumstances of the case are fully

80 proved, there is no room for presumption. The question be­
comes one of fact for the jury, under the general principle that 
he who affirms must prove, and that every man is presumed 
innocent until the contrary appears. We cannot distinguish



SUPREME COURT 23

Appeal from Fairfield County

this case from that of State vs. Coleman, 6 S. C. 185.” See 
also State vs. Ariel, 38 S. C. 221; State vs. Rochester, 72 S. C.
194.

So, when His Honor followed his illustration, and charged 
the jury, “ So you see, expressed and implied malice afore­
thought is the wicked heart, for the killing at least,” he prac- 81 
tically told the jury that if there was in the killing itself, the 
wicked heart, that the killing was murder. The charge was 
erroneous because he gave to the jury a misconception of the 
law. Practically the same words were condemned by this 
Court in the case of State vs. Ferguson, 91 S. C. 235, where 
Judge Gage said to a jury :

“And a malicious heart, Mr. Foreman and gentlemen, is a 
heart that is full of sin; that is wrong with God and man. 
Malice, the law books picture, is black. Artists have tried to 82 
draw it—the picture of the human heart— and they picture the 
malicious heart in black, and they picture a lawful heart in 
white. You have got to judge of a man’s heart by what he 
says and does, and by what you know of him, and what you 
know of yourselves, and what you know of human passion and 
human conduct.”

Justice Hydrick, in writing the opinion of the Court, said: 
“ His Honor was likewise unfortunate in departing from the 
approved and well understood legal definitions of malice. It 
is well for the trial judge to point out to the jury the difference 
between the popular and the legal meaning of the word. But a 
man’s heart may be full of sin. It may be wrong with God 
and man. It may be what some artists would depict as black.
Yet, unless it prompts ‘the willful or intentional doing of a 
wrongful act, without just cause or excuse,’ it is not a legally 
malicious heart.”

Hence, just to tell a jury what His Honor did in this case 
about malice was highly prejudicial. By the chargp on mur­
der, His Honor stripped and pruned the word malice to mean 84 
a wicked heart. It was emphasized and made applicable to the 
facts in the case- This is not the law. Wickedness is not 
synonymous with malice. The charge can be searched, and



24 SUPREME COURT

The State vs. Jim Davis

nowhere is there a correct definition of malice. All of the 
cases in this State, from State vs. Doig, 2 Rich. 179, on 
through to the latest case, hold that “ Malice is a term of art, 
denoting wickedness, and excluding just cause or excuse,” or 
similar definitions. The charge in this case cannot be likened

85 to the charge in State vs. Crosley, 88 S. C. 98; there the Judge 
charged the jury that a malicious heart was a wicked heart— 
“ it means a heart devoid of social duty and fatally bent on 
mischief— a wilful and intentional doing of a wrongful act by 
one knowing the act to be against the law, and by one doing it 
wilfully.”

And under no circumstances can one be convicted of mur­
der just by showing an intentional killing, even though the 
heart was wicked in the killing. The State must go further

86 and prove malice, the same as any other material element in 
a charge of murder.

State vs. Coleman, 6 S. C. 186.
State vs. Hopkins, 15 S. C. 157.
State vs. Jones, 29 S. C. 201.
State vs. Ariel, 38 S. C. 221.
State vs. Rochester, 72 S. C. 194.

Hence, where a judge does not charge the law applicable 
to the facts and circumstances, it is reversible error.

87 State vs. Rochester, 72 S. C. 194.

When the charge is considered in its entirety, it will be seen 
that these errors were not corrected, as was the case in State 
vs. Wilson, 115 S. C. 248, and similar cases.

As to Exception Sixteen, the uncontradicted testimony in 
the case was that on Monday morning, after the visit of Robt. 
Duffey on Sunday night, Jim Davis sent to Manuel Suber’s 
and borrowed a shotgun and a loaded shell, that he already had 
a shotgun in his house, and that Robt. Dodson, when he came

88 over to appellant’s residence, brought his pistol with him. The 
defendant freely admitted that he did so borrow the gun and the 
ammunition, and stated that when he did he borrowed it to 
protect himself, his family, and his castle from the anticipated



SUPREME COURT 25

Appeal from Fairfield County

attack of these boys and Mr. Scott. The solicitor replied to 
him, “ Then you had a regular ‘strong place’ over there.”

When the Judge came to charge the jury, he told them this: 
“ Buying ammunition would express his malice; going for a 
gun would express his malice.” Matter of fact, this was the 89 
sole reason that His Honor gave in not directing a verdict of 
not guilty at the close of the whole case, “ he had made this 
preparation.” Now, under some facts and circumstances, per­
haps, buying ammunition or going for a gun would express 
malice, but, certainly no malice would be expressed where one 
bought ammunition or where one went for a gun to defend 
himself, his family, and his castle. But here was a direct 
statement of the Judge as to what would express his malice—the 
Judge telling the jury just what would express the defendant’s 
malice— and this is the very thing which is condemned by 1895 90
Constitution, Art. V, Section 29, wherein it is provided: “Judges 
shall not charge juries in respect to matters of fact, but shall 
declare the law.”

So great is the weight which a jury attaches to an intima­
tion of opinion coming from one set apart to preside over the 
Court, because of his impartiality and capacity to decide justly, 
that the duty is ever present to a judge to guard against any 
expression, either in questions, remarks, or in his charge, that 
may so influence the jury as to make the Judge a participant 91 
in their findings of fact. This duty is imposed by the Con­
stitution, and a departure from it tending to affect the decision 
by the jury of a material issue of fact must result in a new 
trial.

Willis vs. Telegraph Co., 73 S. C. 379.
Latimer vs. Electric Co., 81 S. C. 374.
State vs. Driggers, 84 S. C. 526.
State vs. Jackson, 87 S. C. 407.
State vs. Eeberee, 95 S. E. 333.
State vs. Smalls, 82 S. C. 421. 92
State vs. Turner, 117 S. C. 470.
State vs. Barfield, 122 S. E. 856.



26 SUPREME COURT

The State vs. Jim Davis

The verdict was inevitable, defenses or what not, when the 
Judge told the jury that “ buying ammunition and going for a 
gun would express his malice”—and the defendant had done 
just this. He thus made himself a participant with the jury in 
their findings of fact, here was malice— under the Judge’s in­
structions— and, therefore, he was guilty of murder. This 
Exception should be sustained.

I have tried to cover the Seventeenth Exception in my dis­
cussion of Exception Thirteen, Fourteen and Fifteen.

As to E rrors in  C h arging  on A ppearances

The errors charged are covered in Exceptions Eighteen, 
Nineteen and Twenty, and they will all be grouped and dis­
cussed together.

The law imposes on a defendant the burden of proving, not 
that the necessity did in fact exist, but that the circumstances 
were such as to warrant a man or ordinary reason and courage 
in concluding that it did exist, and that the defendant himself 
did in fact so believe.

The defendant had the right to act upon appearances, and if 
they were such that a man of ordinary prudence and courage 
would have been justified in coming to the conclusion that the 
necessity did exist, that was sufficient, although it afterwards 
turned out that it did not in fact exist, hence, the defendant 
could not be required to prove the necessity did in fact exist, but 
only that it appeared to exist; neither could he be required 
to prove than “ any other man”  would have been justified 
in believing, but only that a man of ordinary prudence and 
courage.

State vs. Gandy, 101 S. E. 644-

And if he brought himself otherwise within the ordinary 
element of self defense, the killing would not be reduced from 
murder to manslaughter; but, in such event, the defendant 
would be entitled to a verdict of Not Guilty.



SUPREME COURT 27

Appeal from Fairfield County

E xceptions C h arging  E rrors on th e  P art of H is H onor
in  C h arging  th e  L a w  of Self D efense .

The errors charged are grouped in Exceptions Twenty-one, 
Twenty-two, Twenty-three, Twenty-four, Twenty-five and 
Twenty-six, and they will be discussed for the most part to- 97 
gethfer.

It is well established that in the exercise of the right of 
self defense by an occupant of premises, using the word in the 
most comprehensive sense, in relation to his right to defend not 
only his own person, but anyone else whom he may have the 
legal right to defend, whether in the castle or dwelling house, 
the curtilage, other parts of his premises, his place of business, 
or place to which he has the right of legal resort by reason of 
membership in some organization in possession thereof, if 9g 
assaulted by another who has become objectionable or is tres­
passing or seeking an unlawful entry therein, in such manner 
as to endanger life or threaten serious bodily injury, is not 
bound to retreat, but may stand his ground and meet such force 
even to the extent of killing his assailant, if he brings himself 
within the ordinary rules of self defense applicable to such 
a case.

Bishop’s New Cr. Law (8th edition) Sec. 858.
Clark’s Cr. Law (2nd edition) p. 171.
State vs. Nance, 25 S. C. 168. 99
State vs. Bodie, 33 S. C. 117.
State vs. Trammel, 40 S. C. 331..
State vs. Corley, 43 S. C. 205.
State vs. Brooks, 79 S. C. 144.
State vs. Stevenson, 85 S. C. 247.
State vs. Ellison, 95 S. C. 127.
State vs. Gibbs, 113 S. C. 256.
State z’s. Bowers, 115 S. E. 303.

Neither is such occupant to be charged with legal fault in 100 
bringing about the fatal difficulty so as to deprive himself of 
the right of self defense because of the use in the first instance 
of a reasonable and necessary amount of physical force in



28 SUPREME COURT

The State vs. Jim Davis

attempting to prevent an unlawful entry or to effect a lawful 
ejectment. It is, therefore, only necessary for the occupant 
under such circumstances to show that, at the time of the kill­
ing, he entertained an actual bona fide belief that he, or some 
one who he had the legal right to defend, was in imminent 
danger of loss of life, or sustaining a serious bodily injury, and 
that the danger, either real or apparent, was such as to warrant 
a similar conclusion by a man of ordinary judgment, reason 
and firmness, in order to render the plea of self defense avail­
able. And standing on his right to eject or to prevent an 
intrusion, in his plea of self defense, where one is seeking an 
unlawful entry into his dwelling house, he may use greater 
force than on other parts of his premises. This Court recog­
nized this distinction in the case of State vs. Lightsey, 43 S. C.

102 116, when it said : “ Out on the lands, away from the castle, he 
(the occupant) has not the same right there that he has in his 
home.”

The uncontradicted testimony and the only testimony in the 
case showed that the defendant was in his own home, and had 
done nothing whatever to provoke the difficulty, that he was 
without legal fault; he did not have to retreat, yet His Honor 
charged the jury these two elements, and in them he made 
errors as will be pointed out; certainly, the only thing he had 
to establish by the preponderance of the testimony at this time, 
on this defense, was that he entertained an actual, bona fide 
belief that he was in danger of suffering serious bodily in­
jury, or someone who he had the legal right to defend, and that 
a man of ordinary reason and firmness would have been war­
ranted in reaching a similar belief.

State vs. Me Greer. 13 S. C. 464.
State vs. Jones, 29 S. C. 236.
State vs. Jackson, 32 S. C. 44.
State vs. Wyse, 33 S. C. 595.

104 State vs. Littlejohn, 33 S. C. 600.
State vs. McGraw, 35 S. C. 290.
State vs. Bowers, 65 S. C. 214.
State vs. Hutto, 66 S. C. 452.



SUPREME COURT 29

Appeal from Fairfield County

State vs. Foster, 66 S. C. 473.
State vs. Thompson, 68 S. C. 137.
State vs. Miller, 73 S. C. 278.
State vs. Thompson, 76 S. C. 124.
State vs. Stockman, 82 S. C. 400.
State vs. Watson, 94 S. C. 461. 105
State vs. Bethune, 99 S. E. 753.
State vs. Heron, 108 S. E. 93.
State vs. Green, 110 S. E. 145.
State vs. Bradley, 120 S. E. 240, and a list of other cases 

too numerous to cite, together with those cited above in this 
section of the argument.

It is the belief of the defendant; and the belief of the man 
of ordinary reason and firmness. Yet the Judge charged the 
jury in this case that having shown that he was without 106 
fault in bringing on the difficulty, that “he has to show that at 
the time of the shooting or killing, that at that time he was 
in danger of losing his life or suffering serious bodily harm 
from his antagonist”— a burden altogether too severe, and one 
not required by law. Moreover, and in the same connection, he 
charged them, “ and in order to save his life, or his body from 
serious harm, at that time, there was nothing else for him to do 
except to shoot or strike to save his life or his body from 
serious harm,” another burden, altogether too heavy, and not 1Q7 
required by law; moreover, he charged them in the same con­
nection, “ then, he has got to establish, moreover, not only that 
he believed that he was in danger of losing his life or receiving 
serious bodily harm at the time, but that any other man situated 
as he was at the time would have been justified.” Here the Court 
will see, where any other man was emphasized, this is not the 
test.

And then, again, in charging on appearances in reference 
to self defense, as charged in Exception Twenty-four, any other 
man is again emphasized. But, moreover, His Honor charged 108 
them, “ he has got to establish that by the preponderance of the 
evidence, and make it complete and full and give it all to you.”
And this is Exception Twenty-five. In State vs. Lindsay et al.,



30 SUPREME COURT

The State vs. Jim Davis

82 S. C. 488, Judge Klugh told a jury in a murder case, in 
speaking of self defense, that the law on that issue is “strict 
and rigid,”  and that the affirmative of that issue must be 
clearly established.”  This Court held that the same was preju­

dicial error and placed upon the defendant a greater burden
109 than that required by law. Here is the language of Judge 

W oods; “ In view of the sharp issue of veracity between the 
witnesses on the question of self defense, we cannot escape the 
conviction that it was prejudicial to the defendant to single out 
the issue of self defense, and say to the jury the law on that 
issue is “strict and rigid,” and that the affirmative of that issue 
must be “ clearly established.” It is true the judge said in the 
same connection that the plea must be established by the pre­
ponderance or greater weight of the evidence, but, when the 
instructions are considered together, they can have no other 
meaning than that the law is strict and rigid in requiring the 
plea of self defense to be clearly established by the preponder­
ance of the evidence. The law is that one who kills another 
is excused if he establishes the plea of self defense by the pre­
ponderance of the evidence- While it is the duty of the Courts 
and juries to be resolute in rejecting the plea when not sup­
ported by a preponderance of the evidence, the Court is not 
at liberty to single out this plea as one which the law strictly 
and rigidly requires to be clearly established by the prepon-

111 derance of the proof. In Sanders vs. Aiken Mfg. Co., 71 S. C. 
58, the instruction was: “ Contributory negligence on the part 
of the plaintiff in order to absolve the defendant from liability 
must be ‘clear and convincing.’ In holding this to be error, the 
Court said, ‘that such proof should be clear and convincing, 
and indeed, leave no room for any other inference to justify 
the Court from taking the case from the jury, there can be 
no doubt. Doolittle vs. Ry. Co., 62 S. C. 130. But there is no 
room for a jury to require or seek proof more clear and con­
vincing as to this defense than any other in which the burden

112 is on the defendant. The rule is that he must establish con­
tributory negligence by the preponderance of the evidence. It 
is highly desirable that evidence on all issues should be clear and 
convincing, but it tends to the prejudice of a party for the Court



SUPREME COURT 3 i

Appeal from Fairfield County

to single out an issue as to which the burden of proof is on him, 
and instruct the jury that ‘he must prove his contention by 
evidence clear and convincing.’ The point is not free from 
difficulty; but, after a careful examination of the whole record, 
we cannot feel satisfied that the instruction did not overstate 
the burden imposed on the defendants in making out the plea 113 
of self defense, and was prejudicial.”

It is true that in our case, like it was in the Lindsay case, 
the Judge told the jury that the defendant had to establish that 
by the preponderance of the evidence, but taking these in­
structions together, he said, practically, that while the law 
required him to establish it by the preponderance of the evi­
dence, yet he had to make it complete and, full, and-give it all 
to the jury. The rule in this State is not the rule that Portia 
gave to Shylock: 114

“ Therefore, prepare thee to cut off the flesh.
Shed thou no blood; nor cut thou less nor more 
But just a pound of flesh; if thou cut’st more 
Or less than a just pound, be it so much 
As makes it light or heavy in the substance,
Or the division of the twentieth part 
Of one poor scruple, nay, if the scale do turn 
But in the estimation of a hair,
Thou diest, and all thy goods are confiscate.”

115
If the evidence preponderates, “ if the scale do turn but in 

the estimation of a hair,” then the defendant is not guilty. 
Complete means perfection—full means having all that can be, 
the highest state, point, or degree— all means the whole, every­
thing.

And then, Exception Twenty-six alleging error in the charge 
in reference to self defense: “ He has got to establish another 
thing, this is the last one, ordinarily, he has got to establish 
that there was no reasonably safe means of avoiding the dif­
ficulty in defense of his life or loss of limb, he could not get out 116 
of it, he had it to do, that the necessity was upon him to kill 
to save his life or his body from serious harm. Now, these 
four things have got to appear before he can establish his self



32 SUPREME COURT

The State vs. Jim Davis

defense.”  A  man is not justified in taking human life, even in 
defense of his home, after the danger has passed. State vs. 
Stockman, 82 S. C. 486. But if the danger of making a forci­
ble entry or the necessity to present an unlawful intrusion or 
invasion is imminent, one may then strike, using such degree 
of force as may be reasonably necessary under the facts and 
circumstances, and if death results, the homicide is excusable.

State vs. Rochester, 72 S. C. 199.
State vs. Brooks, 79 S. C. 149.
State vs. Bradley, 120 S. E. 240.
State vs. Gordon, 122 S. E. 502.

The danger of death or serious bodily harm must appear 
imminent—and ordinarily it is a man’s duty to avoid taking

118 life where it is possible to prevent it, even to the extent of 
fleeing. State vs. Rowell, 75 S. C. 510. It is said that one of 
the “ foundation rocks upon which the plea of self defense is 
bottomed is that it was necessary for the accused to take the 
life of his fellow man to protect his own, or to protect himself 
from serious bodily harm.” State vs. McIntosh, 40 S. C. 349. 
And if he has any probable means of escape than that of taking 
the life of his fellow man, he is bound to adopt that means. 
State vs. Corley, 43 S. C. 127; State vs. Summer, 55 S. C. 32. 
The law requires, under all circumstances, that a man retreat

119 before taking the life of his assailant, unless he be in his dwell­
ing, or on the curtilage, or on his premises, and he must adopt 
the reasonable or probable means of escape. State vs. Foster, 
66 S. C. 469. But he is never required to show that “ he could 
not get out of it, he had it to do.” In his dwelling house he 
may stand his ground, he may go forward. Under no cir­
cumstances, one accused of homicide need not satisfy the jury 
that he had no other way of escape except to kill, but only that 
no other way of escape would have appeared to a man of

12q ordinary prudence and firmness.
State vs. Thomas, 103 S. C. 321.
State vs. Jordan et al., 96 S. E. 221.



SUPREME COURT 33

Appeal from Fairfield County

A s to  th e  C harge on  th e  L a w  of t h e  Castle

Complaint is made of the charge on the law of the castle, 
beginning with Exception Twenty-seven and going through 
Exception Thirty-two, inclusive-

A  man who attempts to force himself into another’s dwell- 121 
ing, or who being in the dwelling by invitation or license, re­
fuses to leave when the owner makes that demand, is a tres­
passer, and the law permits the owner to use as much force, 
even to the taking of his life, as may be reasonably necessary 
to prevent the obtrusion or to accomplish the expulsion. In 
ancient days habitations were necessarily converted into strong­
holds of defense, and the dwelling became a castle. The law 
crystallized the familiar principles: "While the man keeps
the door of his house closed, no other party may unlawfully 
break and enter it.” “ The persons within the house may 122 
exercise all needed force to keep aggressors out, even to the 
extent of taking life.” Bishop’s New Cr. Law, 8th Edition, 
paragraph 858. The dwelling house of a man is his castle, and 
he may not only defend the same, if necessary or apparently so, 
against one who manifestly endeavors to enter the same in a 
wanton, riotous, or violent manner, or with intent to commit 
a felony on him or some inmate of his household or guest, or 
the habitation itself, but also against one who is only attempt­
ing to commit the misdemeanor of a forcible entry, even to the 123 
extent of killing the assailant, if such degree of force be reason­
ably necessary to accomplish the purpose of preventing a forci­
ble entry against his will.

State vs. Brooks, 79 S. C. 144.
State vs. Gibbs, 113 S. C. 256.
State vs. Bradley, 120 S. E. 240.
State vs. DuPre, advanced sheets.

The occupant may, however, waive the protection of the 
castle, and allow one to enter therein by express or implied 124 
license or invitation. Such a person cannot lawfully be ejected 
by the use of violence until he has been requested to depart, 
and if he refuse to heed the request the hands must be laid



34 SUPREME COURT

The State vs. Jim Davis

on gently, and thereafter only so much force may be used as is 
necessary to accomplish the ejectment.

State vs. Bradley, 120 S. E. 240.
But no man has the right, as the Court well says, in the

125 case ° f  State vs. McIntosh, 40 S. C. 361, to kill an invited guest 
without any notice to leave, and one so killing does not occupy 
the position of one who slays in defense of the castle, and for 
similar reasons, excessive force, or a needless battery, resulting 
in the death of one employed in the ejectment of such person 
from the dwelling house cannot be excused.

Bishop’s New Cr. L., 8th edition, paragraph 895.
State vs. Bradley, 120 S. E. 240.
State vs. McIntosh, 40 S. C. 361.

126 Even though one should enter the habitation of another 
without his consent or permission, or against his positive ob­
jection, and thereby assume the status of an intruder or tres­
passer, yet, if he came peaceably and is not misbehaving, he 
should first be ordered away, and thereafter there is no practi­
cal distinction between the rights of the occupant in effecting 
his ejectment and the case of a licensee. It has been held 
where one, although forbidden to enter, went in peaceably, 
the occupant had no right to kill him upon a failure to in­
stantly obey an order to leave, and that such an act was murder.

People vs. Horton, 4 Mich. 67.
O f course, if the entry itself is made in a reckless, riotous, 

or violent manner, or is effected by overcoming the physical 
or verbal opposition of the occupant, or is made under such 
circumstances as to manifestly evidence a purpose to endanger 
the life or limb of any inmate, or to commit a felony on 
them, the habitation or property therein, in other words, is not 
quiet and peaceable, no request to depart, or the laying on of 
hands, need precede, as a legal requirement, the act of ejectment

128 by such force as is necessary, even to the killing of the assailant, 
for the very obvious reason, as is well said in one of the cases, 
“ Since the trespasser knows, as well without express words 
as with, that his absence is desired.”



SUPREME COURT 35

Appeal from Fairfield County

The foregoing principles apply to the rights of the occupant 
in the protection of his habitation, apart from the right of self 
defense, which obviously may also, under such circumstances, 
be asserted. They manifestly do not apply except in relation 
to the habitation. “ In such a case, the occupant is not re-

1 nQ
quired to retreat, but may press forward, availing himself, 
in addition to every legal right of self defense which one would 
have on other parts of the premises, of the right also to put the 
objectionable one out of the house, and to use as much force 
as is necessary for the purpose, even.to the extent of taking his 
life.”

State vs. Bradley, 120 S. E. 240.

Thus, it will be seen, in this admirable opinion by Justice 
Cothran, that there is a difference between one who enters as 
an invited guest, or by either implied or express license, and by 
one who enters as an intruder or trespasser; and the law au­
thorizes each to be treated differently, in no event do they stand 
on equal or on the same grounds. The very acts, conduct and 
language of Mr. Scott showed that he did not go either by in­
vitation, or by express or implied license. On the contrary, 
he sent for the girls, and their father refused to permit them 
to go. Immediately he armed himself with a 38 Special pistol, 
and was armed so satisfactorily to himself that he stated, “ this 
is enough to bring two or three back with,” meaning the 131 
daughters of defendant, who were in their father’s dwelling 
house, and he started to the home of defendant for these chil­
dren. Upon being informed by D. R. Martin, the landlord of 
the defendant, that “ Old Jim has sent for me, he says he is 
having trouble about his girls going, and I am going over there,” 
the deceased remarked, “ I will go over there and get them,” 
and started his truck off, leaving D. R. Martin, the landlord, 
to walk, following the truck. Moreover, Mr. Scott knew full 
well that Jim Davis would not permit these boys to go into 
his house again. And yet, under such circumstances, the Judge 132 
charged the jury that the question whether or not Scott was 
a licensee in going into this man’s yard and house under such 
circumstances was for them. How could it have been? What



36 SUPREME COURT

The State vs. Jim Davis

had Jim Davis done or said to give to Mr. Scott the right to 
go? No invitation had been extended to him, no express 
license to go had been given him by Jim Davis; and Jim Davis 
had said nothing and had done nothing from which any man of

133 o r d i n a r y  courtesy and intelligence could have even inferred 
that he had an implied license to go, under the facts and cir­
cumstances as were presented to Austin Scott. On the con­
trary, every act and every word of Jim Davis had convinced 
Austin Scott, before even he started, that his presence was not 
wanted, and that his absence was desired. And no man is a 
licensee who goes into another’s home, without either express 
or implied permission or invitation, until he is given notice to 
get out. And, yet, this is just what the Judge charged: “ Now, 
if he is resisting, that applies to anybody who comes in and is

1 34 given notice to get out, because he is a licensee up to the time
if he has no notice that he is objectionable.”  And then followed 
a most prejudicial statement by the Judge: “ We couldn’t trans­
act business unless that was so, so you see that, because it is 
common sense. We couldn’t walk to the house of our friends 
if that wasn’t so— with our hands on the trigger, that wouldn’t 
do. . . . He has implied consent to unless he has some
notice to come and go.” But where you go to the house of a 
man on a truck, with two who have just been denied admission, 
heavily armed— for the purpose of taking the children of the 
occupant out—no man has “ implied consent to come and go 
unless he has some notice,”— but deceased here had every 
notice, and there was no element of license in this case, under 
any phase of the testimony, and the same should have never 
been injected into it.

In the portion of the charge complained of in Exception 
Thirty, His Honor placed a licensee, invited guest, and a tres­
passer on the same footing in law. “ Now, I said when he tells 
him to go he must go, a licensee, or guest, or otherwise. When-

136 ever wiH of the owner changes, whenever he tells him he 
must get out, the owner of the house must act with common 
sense and decency and tell him to go. If he doesn’t go, he 
can’t take hold of him and knock him on the head and batter



SUPREME COURT 37

Appeal from Fairfield County

him and treat him like a dog. He can, however, do this, he 
can use force when he goes to resisting, to the man who is 
told to get out. I want you to pay attention to this, he can 
use force, he has the right to use even greater force than the 
man who is told to get out uses, because he has the right in 
law to use enough force to expel.” This is not the law, and 
never will be. State vs. Bradley is wrong, if this be right. If 
a man is an invited guest or a licensee, either by expression or 
by implication, and for any cause whatsoever becomes ob­
jectionable to the occupant of the home, the law requires him 
to first gently lay hands on him, and request his departure. If 
then he, the invited guest or the licensee, refuses to go, force 
which is necessary to accomplish the ejectment may be used; 
but where a man is neither “ a licensee or guest,” but is 
“ otherwise” a trespasser, the law does not require the de- 
fendant to treat him with the same consideration that he would 
treat one who had his permission to come in, or who was in­
vited on his part to come in ; here circumstances govern, “ If the 
entry itself is made in a reckless, riotous or violent manner, 
or is effected by overcoming the physical or verbal opposition 
of the occupant, or is made under such circumstances as 
manifestly evidences a purpose to endanger the life or limb of 
any inmate, or to commit a felony on them, the habitation or 
property therein,— in other words, is not quiet and peaceable—  139 
no request to depart, or the laying on of hands needs precede, 
as a legal requirement, the act of ejectment by such force as is 
necessary, even to the killing of the assailant, for the very 
obvious reason, as is well said in one of the cases: ‘Since the 
trespasser knows as well without express words as with that 
his absence is desired,’ ”  State vs. Bradley, 120 S. E. 240. 
Moreover, the error becomes more dynamic when it is con­
sidered in connection with the error charged in Exception 
Thirty-one: “ If in using force to expel him he takes his life 
by the use of that force to expel him, the law says he will be 140 
excused for it. And if the intruder has a deadly weapon, 
and he sees he has a deadly weapon, etc.” If, from the facts 
and circumstances of the case, it becomes necessary or ap-



38 SUPREME COURT

The State vs. Jim Davis

parently necessary to use a deadly weapon to eject from the 
habitation a trespasser or to prevent an unlawful intrusion of 
the habitation, the occupant has that right whether “ he sees he 
(the trespasser) has a deadly weapon, or not” ; there is no

141 law which requires the defendant to see the weapon on the 
trespasser before he can resort to the use of a deadly weapon, 
provided he bring himself otherwise within the rule. And the 
errors must become more patent, for, following this is the 
error alleged in Exception Thirty-two. Clearly an opinion, 
and an expression on a fact, “ I don’t know of any law that in 
the very first instance excuses a man in his home for using 
a deadly weapon on another, unless there is some circumstance 
which justifies it or excuses it, that is, if the other party, if the 
other party he can overcome without the use of a deadly

142 weapon, I am talking about other cases, vl am not talking
about this, etc.” Here His Honor saw that he had gone too 
far. This charge was worse than the one condemned in State 
vs. Watson, 94 S. C. 458. This was said in connection with 
the castle: “A man within his dwelling, about to be attacked,
need not wait to see just what kind of a weapon he is to be 
attacked with.” Judge Watts, in his inimitable style, stated in 
State vs. Campbell, 96 S. E. 543: “ A  person assaulted, being 
without fault in bringing on the difficulty, has the right to use

143 such force as is necessary for his complete self-protection, or 
which in the mind of a person of ordinary reason and firmness 
would reasonably prevent the assailant from taking his life or 
inflicting serious bodily harm. The defendant in this case had 
this right. He was not limited to the right to repel force by 
a beer bottle, and wait to see if deceased intended only to in­
flict on him such injuries as he had inflicted on Paul. He 
(the defendant) was not limited to use the same force and 
no more than that with which he was threatened. The 
defendant, if without fault, had the right to use such neces-

144 sary force as required for his complete protection from 
loss of life or serious bodily harm, and could not be limited to 
the degree or quantity of attacking opposing force.” This 
is the rule as to self defense. A  man in his dwelling may use



SUPREME COURT 39

Appeal from Fairfield County

such degree of force as is reasonably necessary to accomplish 
his purpose of preventing a forcible entry against his will; and 
he cannot be limited to repel force by force, and wait to see if 
deceased intended only to use the same or some lesser degree 
of force; he is not limited to use the same force and no more 
than that with which he is threatened. The defendant, if in 
his dwelling house, had the right to use such degree of force as 
was reasonably necessary to keep invaders out, and he could 
not be limited to the degree or quantity of attacking opposing 
force. I think that I have fully covered Exception Thirty- 
three in what I have said on other Exceptions as to licensees. 
Certainly this is not a correct statement of the law under 
State vs. Bradley, supra.

As to R equests to C harge

Exceptions Thirty-four and Thirty-five go primarily to the 
facts of the case, and have been covered by my argument on 
the motions to direct a verdict.

The error complained of in Exception Thirty-six, wherein 
His Honor refused to charge the request. It is submitted that 
the request was proper, and that it was applicable to the case, 
and was requested on the authority of State vs. Bradley, 120 
S. E. 240. So, also, the errors in Exceptions Thirty-seven and 
Thirty-eight were taken practically from State vs. Bradley,
120 S. E. 240. The requests were good law, and they were 
applicable to the case- So, also, was request contained in 
Exception Forty, taken practically from State vs. Bradley,
120 S. E. 240.

The request to charge, the error of which is alleged in 
Exception Thirty-nine, is good law, it was taken from authority 
of State vs. Gibbs, 113 S. C. 256, but when His Honor finished 
with it, in confounding it with “ arson and burglary and such 
crimes as that,” the law as to the curtilage was confused and 148 
beclouded, and the charge was calculated to mislead, and the 
way in which it was charged was prejudicial. “Arson and 
burglary and such crimes as that” were altogether out of place



40 SUPREME COURT

The State vs. Jim Davis

and inapplicable in this case, and should have never been 
injected.

It is respectfully submitted that the error complained of in 
Exception Forty-one, wherein His Honor refused to charge the 
request therein referred to, was reversible. The request con-

149 tained a correct statement of the law, applicable to the case, 
and should have been charged. It was in the main based on 
State vs. Bradley, supra. And to like effect was the request 
referred to in Exception Forty-two, based on the law declared 
in 30 Corpus Juris, page 72. So, also, was the request con­
tained in Exception Forty-three, evidence was that defendant’s 
children were in that house ranging from three years up. It 
was applicable to the facts and circumstances of the case, 
and should have been charged.

150 The request contained in Exception Forty-four was a 
correct statement of law, applicable to the case, and should 
have been charged. It had a direct bearing on the defense of 
the defendant, and clearly brought him within the rule of law 
as laid down in State vs. Bradley, supra.

His 'Honor refused to charge the request referred to in 
Exception Forty-five, on the ground that it was a charge on 
the facts. It was not on the facts at all, but if it was, then 
they were all admitted facts by both the State and the de­
fendant, and under the admitted facts as a matter of law he

151 was entitled to a verdict of not guilty, although the request 
did not go that far.

The request of the defendant stated in request referred to 
in Exception Forty-six was a correct statement of law, and 
should have been charged. It was applicable to the facts and 
circumstances of the case, and the refusal of the same was 
reversible error.

So, also, the request referred to in Exception Forty-seven 
contained a correct statement of law, applicable to the facts and

152 circumstances of the case, and should have been charged, and 
the refusal to so charge was reversible error.

What I have said in my argument as to the charge on 
malice and murder fully covers Exception Forty-eight, that



SUPREME COURT 4i

Appeal from Fairfield County

even though malice was in a killing, still, if it be done under 
circumstances justifying it or excusing it, there can be no 
murder.

As to Exception Forty-nine limiting the defense of defendant 
to the castle, this being his last expression on that subject 
might have tended to have left the jury with the idea that they 153 
should disregard his defense of self defense, and therefore 
was prejudicial. The error alleged in Exception Fifty is 
apparent. The burden imposed was greater than that required 
by law. State vs. Bradley, supra.

The verdict in this case was written in prejudice and 
capriciousness, and was in no wise responsive to the evidence 
and to the charge. A new trial should have been granted.

The charge on the whole was prejudicial, and indicated to 
the jury that the Judge thought that the defendant should be 154  

convicted. It was confusing and calculated to mislead, de­
fenses were not properly given and defined and the lines of 
demarkation properly indicated, and, on the whole, it was 
most unsatisfactory, and so many errors were therein con­
tained that it was bewildering, and, on the whole, it was im­
possible to get a correct idea of the law.

IN CONCLUSION
1 55The rights of an individual have been trampled upon, and 

a wrong has been done to humanity. If asked, why was this 
man convicted? I will give the truthful answer, because he 
was a negro, and for no other reason. I appeal to this great 
Court with every confidence that the wrongs that have been 
done will be righted, and that righteousness shall prevail. This 
Court has never yielded to caprice and prejudice, and that is 
why it is the great bulwark of our State government.

Some time ago I was in a large museum in one of our great 
cities with Mrs. Southard. We spent a number of hours there, I56 
looking at works of invention, and art, and industry; tracing 
the development of the race, in the different civilizations of 
the different countries of the world, and, as I passed by exhibit



42 SUPREME COURT

The State vs. Jim Davis

after exhibit, there were two things which I saw that interested 
me most. One was the shank bone of a reindeer, and on it was 
carved two wavy lines running parallel with each other, be­
tween these lines and at the lowest end was carved a canoe, 
just above a canoe and a man and a girl in it, just above this 
a canoe with the man in a falling position with an arrow in 
his back, and the girl was coming back; down at the lower 
end of the wavy line and on the right was carved six trees 
with a rope going from one tree to another, making an en­
closure, inside of this enclosure was carved six wigwams, in 
front of the enclosure was carved a snake, and in front of 
the snake was carved an eagle.

This bone was gotten from a stalagmite, and the scientists 
stated that it belonged to a civilization of fifteen thousand years 

158 ago. The bone told this story. That the place of habitation 
was pitched on the side of the river where the animals came 
to drink, and cross, and where food could be easily procured; 
that men were living in groups, in a somewhat tribal state, 
and that here were six families in one enclosure, and that in 
one family there was a daughter. That one night a young 
man from another tribe further up the river came down in 
his canoe, and slipped into the tent of her father and hurriedly 
carried her away. The serpent was a symbol of darkness 
and deception, and the eagle was the symbol of flight and 
speed. That he did not make his get-away, but was shot by 
an arrow, and the girl was returned to her parents.

The other thing that I saw that interested me was a stone 
which had been dug up in Mesopotamia. On it was engraved 
a log split in two, and the parts placed side by side; a girl with 
her head resting in her hand, her body and arm forming a 
triangle; below this was her arm open about half out; and 
below this was a hinge. There were peculiar characters which 
only the experts could read. But it had been translated into 

1 60  English, and it told this story. That in the long ago, before 
the dawn of civilization, people between the Euphrates and 
the Tigris lived in dugouts; that one night a storm was raging, 
and the girl was left alone, her people had been unable to beat



SUPREME COURT 43

Appeal from Fairfield County

the storm, and were caught out in it somewhere on the plains. 
That the opening to the dugout was covered by a skin. That 
into the dugout that night, to escape the storm, there ran a 
young man. And finding himself alone with the girl, he made 
improper advances toward her and made improper proposals 
to her. Somehow or other she got rid of him. Her people 161 
returned. That night when she went to sleep, she was think­
ing of how the dugout could be closed and fastened securely, 
and yet opened easily. She slept on her hand, and she dreamed 
how she could keep intruders out. If something could be made 
like an elbow, and a log could be split and fastened together, and 
this something could be fastened to the outside and to the 
split log, the problem would be solved. And scientists tell 
us that this was the first invention.

The bone and the stone were found in different parts of the 162 
world, and each represented a different period of time. Each 
was elemental in the instincts of humanity, and as I studied 
this bone and this stone, and thought of the story attached 
to each, I thought of the evolution of the law in regard to the 
habitation and the dwelling and the castle, and I thought of 
Justice Cothran’s language, in State vs. Bradley. “ In ancient 
days habitations were necessarily converted into strongholds 
of defense, and the dwelling became a castle. The law 
crystallized the following principles: While the man keeps the 
door of his house closed, no other may unlawfully break and 163 
enter it; the person in the house may exercise all needed force 
to keep aggressors out, even to the extent of taking life.” 

Respectfully submitted,
L. G. Southard ,

Attorney for Appellant.

164



i