State v. Davis Transcript of Record

    The State of South Carolina
IN THE SUPREME COURT

APPEAL FROM FAIRFIELD COUNTY

HON. J. K. HENRY, JUDGE

THE STATE—Respondent 
vs.

JIM DAVIS—Appellant 

TRANSCRIPT OF RECORD

L. G. SOUTHARD,
Spartanburg, South Carolina, 
Attorney for the Appellant.

SOLICITOR J. LYLES GLENN, Jr., 
Chester, South Carolina,
W. D. DOUGLAS,
Winnsboro, South Carolina, 
Attorneys for Respondent.



I N D E X

Page
Statement _________________________________  3-6
Motion for Change of Venue________________  6-12
Testimony for the State
M. B. M artin_______________________________ 12
E. S. Warlick_______________________________ 12-18
0. S. Lindler_______________________________ 18
Jas. McFie_________________________________  18-19
Jack Jewett_________________________________  19-31
Will Worthy________________________________  31-41
J. L. Brice__ ________________________________  41-42
Motion for a Directed Verdict________________ 42-43
Testimony for the Defense
John W. Lyles______________________________  43-44
Gillie E. Martin_____________________________  44-48
Jim Davis-----------------------------------------------------  48-61
Gillie Martin, recalled_______________________  61-62
Dave Martin________________________________  62-64
Testimony in reply
Willie Worthy_______________________________ _ 64-65
Dr. E. S. Warlick____________________________ 65
Renewal of Motion for a Directed Verdict____ 65-66
Charge-------------------------------------------------------  66-92
V erdict_________________________________ ____ 92
Motion for new trial________________________  93
Exceptions___________________ ,_____________  93-112
Agreement__________________________________ 112



SUPREME COURT 3
Appeal from Fairfield County 

STATEMENT

Jim Davis, the appeallant, was indicted at the 1926 
February Term of the Court of General Sessions for Fair- 1 
field County for the murder of J. Austin Scott. He was 
tried at the June term, 1926, of Fairfield County before 
Judge J. K. Henry and a jury, and was found guilty of 
MURDER with recommendation to the mercy of the 
Court, and was thereafter sentenced to serve for the bal­
ance of his natural life in either the State Penitentiary 
or on the chaingang.

The appellant is a negro man; the deceased was a white 2 
man, who had been a rural policeman, a deputy sheriff of 
Fairfield County, and at the recent election was the sec­
ond man in the race for SHERIFF. He was of a large, 
prominent, influential, and widely scattered family of 
Fairfield County.

The shooting was done in FAIRFIELD COUNTY, and 
death occurred in RICHLAND COUNTY. Immediately 
after the shooting large bands of armed men organized 
themselves, and hunted the appellant, and sentiment was 
strong against him. The Governor as a matter of pre­
caution, ordered that the defendant be kept in the State 
Penitentiary until the date of trial in FEBRUARY.

Timely motion, supported by affidavits, was made for 
a change of venue, which motion was overruled.

The unquestioned facts of the case were:—that this 
appellant is advancing in years, being now fifty-one years 
of age; that he had lived all of his life in FAIRFIELD 
COUNTY, having been born on the place of and reared 
by CAPTAIN JOHN W. LYLES, the venerable CLERK 
of COURT for Fairfield County; that he had never in 
his life heretofore been in trouble of any kind. He had 
two youthful daughters, who had been surreptitiously 
taken from his home, with one Sarah Rabb by three ne­
gro boys, one of whom was JACK JEWETT, and were 
by them taken to COLUMBIA, where the boys slept with 
the girls, and from thence were carried by them to 
GREENWOOD, and there kept by them for several days, 4 
and then back to appellant’s home. That the appellant 
received them back into his home, and under the state­
ment to him by the boys and the girls that they were



4 SUPREME COURT
The State vs. Jim Davis

married, he permitted them there to remain under the 
condition that they were to procure a copy of the mar­
riage licenses and show them to him, and thus satisfy him.

0 The two boys, Jack Jewett and Willie Worthy worked 
on a road doing grade work, they camped and lived in 
tents. The road camp was located on the lands of Mr. 
D. R. Martin, about one-half mile from appellant’s home. 
The girls had been back from their escapade about one 
week when the homicide occurred.

There had never been any cross words, or ill feeling 
betwixt the appellant and the deceased; the contention of

« the defendant was that the only reason why he fired was 
to repel an invasion of his home, and to keep Mr. Scott 
out of his home and yard, and to keep his children from 
being taken out of his home, and in defense of himself 
and his family, and to keep these daughters of his from 
being taken out of his home, and to expel Mr. Scott and 
Jack Jewett and Willie Worthy from his home; the only 
contention of THE STATE being, that at the moment 
shot was fired, it was not necessary for the defend­
ant to have fired it.

The homicide occurred a little after eight o’clock on 
MONDAY morning. Jack Jewett and Willie Worthy left 
the home of appellant and went to the camp; shortly

7 thereafter, they returned in a truck, the appellant was 
standing in his yard with his gun in hand, and told them 
that they could not come into his house again, that if at 
that time they wanted to talk with the girls that they 
could do so from an end window, which was indicated to 
them, that he was not going to let them take his girls 
away, that he had rather follow them to the graveyard 
than for them to live in a negro camp,—the negro boys 
talked to the girls a moment or so, got into the truck and 
went back to the camp. Just at that moment and while 
the boys were leaving, appellant sent his son for Mr. D. 
R. Martin, his landlord, to come and come at once;—and 
just at that moment appellant saw Mr. G. E. Martin com­
ing down the public road in the direction of appellant’s

8 house, appellant had sent for Mr. G. E. Martin in con­
sequence of Robt. Duffey’s communication. Mr. G. E. 
Martin was appellant’s nearest neighbor. Appellant ran 
out to the road and talked for a minute or so with Mr. G.



SUPREME COURT 5

Appeal from Fairfield County
E. Martin;—appellant ran back to his home, and his son 
had then returned from Mr. D. R. Martin’s.

When the two negro boys reached the camp, there was 
Mr. Scott. The negroes told Mr. Scott that they were 9 
unable to get their wives, that JIM DAVIS would not let 
them go, and that he would not let them go into his house; 
he then told them that he would go and get them. Turn­
ing to a man, he inquired of him where was his pistol, 
upon being told that it was in a hafid bag, he went and 
got it; it was a 38 Special, Smith & Wesson, he broke it 
down, and examined it, saw that it had four good car­
tridges in it, and upon being told that there were no more 10 
cartridges, upon his inquiry for more, stated to them, in 
speaking of going to JIM DAVIS’ after these girls “ this 
is enough to bring two or three back with” , got into the 
truck, told these same boys Jack Jewett and Willie Wor­
thy to drive, and started for JIM DAVIS’ house, with 
them. There was no intimation or testimony that Mr.
Scott had ever before been to appellant’s residence, or 
that they were friendly in anywise, or that Mr. Scott had 
any right whatsoever to go to this man’s house, or onto 
his premises for this or for any other purpose.

They had to pass by the residence of Mr. D. R. Martin, 
and Mr. Martin was just starting to appellant’s house in 
response to the message of appellant to come, when the 
truck approached Mr. Martin’s house. Here, there is a 11 
conflict as to just what was said and done; but, some­
thing was said between Mr. Martin and Mr. Scott,—the 
truck drove on, going to DAVIS’ dwelling, and Mr. MAR­
TIN walked on going there, too. The truck passed G. E. 
MARTIN; D. R. MARTIN met G. E .MARTIN, and in 
consequence of what was said, G. E. Martin turned a- 
round and with D. R. MARTIN started to JIM DAVIS’ 
dwelling.

Appellant’s dwelling sat about six hundred feet from 
the public highway, and there was only one road for a 
wagon or truck which led from it down to JIM DAVIS’ 
house; the truck took this road, and passed out of sight of 
D. R. Martin, and G. E. Martin. On it were AUSTIN 12 
SCOTT, with this pistol, Jack Jewett, and Willie Worthy.

In front of appellant’s residence was a fence, it was 
attached to the corner of the house; the front gate was



6 SUPREME COURT
The State vs. Jim Davis

less than seventeen feet from appellant’s door. The truck 
drove up, appellant was in his front door, with his shot 
gun,—the truck turned around and headed out toward

15 the public road and stopped between appellant’s dwelling 
and barn. Mr. Scott jumped off with both of his hands 
in his front trouser’s pockets and advanced towards JIM 
DAVIS’ dwelling, to the fence, by the side of the fence, 
to the front gate with his hands all of the time in his 
front trouser’s pockets. Jack Jewett and Willie Worthy 
simultaneously jumped off of the truck, and started to­
ward the dwelling house of JIM DAVIS. Mr. Scott kept

u going toward the dwelling house with both of his hands 
still in his front pockets, until he reached the gate, he 
started in the gate that led to appellant’s door, and got 
inside the gate, less than seventeen feet from the house 
and front door, whereupon appellant fired, the shots strik­
ing Austin Scott in his right shoulder and breast and 
arm, from the effects of which he thereafter died.

At that time, there were in appellant’s dwelling house, 
those two girls, daughters of appellant; Sarah Rabb who 
was to go to Georgetown also, appellant’s wife, and five 
other children, the youngest of whom was three years of 
age, and a negro man Robt. Dodson.

Clara Worthy and Sarah Davis and others were eye
16 witnesses; Mr. Southard asked that the State be required 

to put them all up, but the Judge stated that he had no 
power to order The State to put up witnesses, and they 
were not put up.

At the close of the State’s case motion for a directed 
verdict was made and refused; whereupon motion was 
made to eliminate the charge of murder, and this was re­
fused ; at the close of the whole case motion for a direct­
ed verdict of not guilty was renewed and refused; and 
motion to eliminate murder was made and refused; when 
the verdict was received motion was made to set the same 
aside, and this was refused. Notice of appeal, after sen­
tence was duly served and filed.

16 AS TO MOTION TO CHANGE THE VENUE.
Affidavit of L. G. SOUTHARD, together with verified 

petition of appellant was submitted:—



SUPREME COURT 7
Appeal from Fairfield County

MR. SOUTHARD’S affidavit was as follows:
That he is the attorney for JIM DAVIS, charged with 

murder, that he has made efforts to obtain assistance 
from the various members of the Winnsboro Bar on the 17 
preparation of the case for the defendant’s defense, and 
in checking up the jury list, and that the several attorneys 
have refused to aid him in anywise, that the reasons giv­
en were the numerous relatives of the deceased and of 
their far-reaching influence; that deponent is a total 
stranger in Fairfield County, that he does not know the 
relationships, prejudices, friendships and other elements 
which enter in and must be taken into consideration in is 
drawing a jury where a negro is on trial for killing a 
white man; that ft is necessary to have associated with 
him local counsel, that he had tried to obtain local coun­
sel in Winnsboro, and could not get anyone to aid him, 
that if the trial is moved to another county, local counsel 
will be obtained.

JIM DAVIS’ verified petition was as follows:—
“ FIRST:—That at the February Term 1926, of the 

Court of General Sessions for Fairfield County, South 
Carolina an indictment was lodged against the petitioner, 
as a defendant, as follows:
‘The State of South Carolina,
County of Fairfield.

At a Court of General Sessions begun and holden in 
and for the County of Fairfield, in the State of South 
Carolina, at Winnsboro Court House, in the County and 
State aforesaid, on the third Monday in February, in the 
year of our Lord one thousand nine hundred and twenty 
six,—

The jurors of and for the County aforesaid, in the State 
aforesaid, upon their oath, PRESENT, that JIM DAVIS 
on the ninth day of November in the year of our Lord 
one thousand nine hundred and twenty-five with force 
and arms at Winnsboro in the County of Fairfield and 
State of South Carolina in and upon one J. Austin Scott 
feloniously, wilfully and of his malice aforethought, did 
make an assault, and that the said Jim Davis him the 20 
said J. Austin Scott then and there feloniously, wilfully 
and of his malice aforethought, with a loaded gun did 
shoot, hit, penetrate, and wound, giving to the said J.



8 SUPREME COURT
The State vs. Jim Davis

Austin Scott thereby in and upon the body of him the 
said J. Austin Scott did soon thereafter die, to wit, on the 
ninth day of NOVEMBER in the year aforesaid and in 
Richland County of the State aforesaid.

And so the JURORS aforesaid, upon their oath afore­
said, do say that the said JIM DAVIS him the said J. 
AUSTIN SCOTT then and there in the manner and by 
the means aforesaid, feloniously, wilfully, and of his 
malice aforethought, did kill and murder against the form 
of the Statute in such case made and provided, and 
against the peace and dignity of The State.

GLENN, Solicitor.
That on the back of the said indictment the following 

witnesses for The State appear, E. S. WARLICK, Clara 
WORTHY, T. J. McMEEKIN, Jack Jewett, H. H. Scott, 
W. F. Scott, and Willie Worthy.

That on the 16th day of February 1926 there was en­
dorsed on said indictment, “ TRUE BILL, W. R. DOTY, 
FOREMAN of GRAND JURY.”

SECOND: That the COUNTY designated in the in­
dictment for the trial of the cause is not the proper Coun­
ty, and Your Honor should order the trial of the said 
cause changed, for the following reasons;—in that it ap­
pears on the face of the indictment that the deceased J. 
Austin Scott died in the County of Richland, and for fur­
ther reasons which will hereafter appear.

THIRD:—Your Petitioner further shows to the Court, 
that immediately after the homicide for which he now 
stands charged, he was for several days hunted by bands 
of armed men, several hundred taking part in the hunt, 
a large number of whom stated openly that they were 
going to kill your Petitioner on sight, and great excite­
ment was in Fairfield County on account of the death of 
Mr. J. Austin Scott, so much so, that your Petitioner was 
fearful of his life, and he was afraid to surrender to the 
Sheriff of Fairfield County, being unable with safety to 
reach the Sheriff, either by telephone or otherwise, and 
he was on account of such great excitement fearful that if 
he was taken by the Sheriff that he would have been forci­
bly taken from the Sheriff and lynched, and it was sev­
eral days and with great effort and with great difficulty



SUPREME COURT 9
Appeal from Fairfield County

that your Petitioner reached the place of Mr. John Stone, 
and got word of his whereabouts, and of his desire to 
surrender.

Your Petitioner would further show that the Governor 
of South Carolina, the Honorable Thos. G. McLeod, being 
fearful of violence done and about to be done to Your 
Petitioner on account of the death of Mr. J. Austin Scott 
ordered that your Petitioner be held in the State Peni­
tentiary for safe keeping until just a few days before the 
February Term of the Court of General Sessions.

FOURTH:—Your Petitioner would further show to the 
Court that Mr. J. Austin Scott was a very popular man, 
that he was the son of Dr. Scott who practiced medicine 
at Monticello for a number of years, being a man loved 
and respected by both black and white, and being an ex­
ceedingly popular man in Fairfield County, and having 
relations by blood and marriage numbering into the hun­
dreds, that one of the witnesses named on the indictment 
is that of Mr. T. J. McMeekin, who is at present a member 
of the House of Representatives from Fairfield County, 
and he is an unusually popular man in Fairfield County, 
and he is the brother-in-law of Mr. J. Austin Scott; that 
Mr. J. Austin Scott was the nephew of Mr. John D. Blair 
who is a very active and influential citizen of Fairfield 
County, having been a Magistrate for Fairfield County 
for forty six years; that his son, who is a first cousin of 
Mr. J. Austin Scott is at this time a rural policeman or 
deputy sheriff of Fairfield County, and he is working out 
of the Sheriff’s office, and comes in contact with a large 
number of citizens, and with jurors, and with prospective 
jurors, and subpoening jurors.

FIFTH:— That Mr. J. Austin Scott was a member of a 
large and influential family in Fairfield County, and with 
hundreds of citizens who were related to him by blood 
and marriage scattered throughout Fairfield County, and 
practically every one of his relations have been actively 
engaged in the prosecution of the case against Your Pe­
titioner, and in prosecuting him on account of said homi­
cide, and using their influence against him. Petitioner 
further shows that Mr. J .Austin Scott was at one time 
rural policeman, a deputy sheriff for Fairfield County, 
and that he just a year or so ago ran for Sheriff of Fair-



10 SUPREME COURT
The State vs. Jim Davis

field County and although there were five men in the race, 
Mr. Scott was the second man.

SIXTH:—Your Petitioner would further show to the 
Court that about ten years ago there occurred a shotting 
between Sheriff Hood of Fairfield County and others 
wherein a Mr. Isenhour, Sheriff Hood, and a constable, 
Mr. Boulware were killed; Mr. J. Austin Scott was at that 
time acting under instructions from Sheriff Hood, and 
had a part in the shooting and the death of those who 
were killed on account of the unfortunate trouble; that 
the said shooting divided Fairfield County, thousands of 

30 the citizens of Fairfield County taking sides with Sheriff 
Hood who was killed, and they contended that Mr. Isen­
hour was making an attack on Sheriff Hood and that for 
that Mr. J. Austin Scott killed Mr. Isenhour,—this caus­
ed great bitterness, and it is still in Fairfield County, cit­
izens are still partisans, and bitter, and vindictive, and 
through circumstances over which your Petitioner had no 
control, the faction to which Mr. J. Austin Scott belonged 
will be and they are arrayed against petitioner; that feel­
ing was so intense in Fairfield County that at the time 
for trial Judge Rice changed the venue in Mr. Isenhour’s 
trial from Fairfield County to York County. There is 
now in the Court Room in the Fairfield County Court 

81 House a bronze tablet erected to the memory of Sheriff 
Hood, placed there by the Bankers Association and laud­
ing him for his heroism and conduct.

SEVENTH:— That it is known, Your Petitioner would 
further show, throughout the sixth Judicial Circuit, of 
which Fairfield County is a part, that Mr. J. Lyles Glenn, 
who is the Solicitor, was a relative of Mr. J. Austin Scott, 
deceased, and on account of the high personal standing 
of Mr. Glenn, and on account of the further fact that Mr. 
Glenn is a Judicial Officer of the Court, Your Petitioner 
would be unable to obtain a fair and impartial trial as 
guaranteed to him by the laws and the Constitution of 
South Car&lina, on his trial charged with the killing of 
Mr. Glenn s relative. This statement is without any in- 

32 tentional reflection on Mr. Glenn, either personally or of­
ficially, but it is a fact that your Petitioner will be unable 
to obtain a fair and impartial trial in Mr. Glenn’s circuit 
for the above reason.



SUPREME COURT 11
Appeal from Fairfield County-

Eighth:—That your Petitioner is a negro man, with­
out influence, or property, and without relatives and 
friends of influence, and without any member of his race 
participating in his trial except as witnesses.

NINTH:—Your Petitioner would further show to The 
Court, that although the Winnsboro Bar and Attorneys 
at Law practicing law in Winnsboro were canvassed and 
their services sought in the defense of Your Petitioner, 
and although Petitioner was in position to pay to them 
a fee for their services, still, he was unable to procure 
COUNSEL in WINNSBORO to represent him, or aid him 
in the preparation of his case, in selecting a jury and 
otherwise in his case, not that they in their judgment 
thought that Your Petitioner did not have a good de­
fense to the indictment and charge, but because they were 
fearful on account of the Scott family and its relations 
being so large and numerous and of their tremendous in­
fluence in Fairfield County, and on account of the terri­
ble prejudice existing against Petitioner that their law 
practice in Fairfield County would be practically ruined, 
and that they would hereafter suffer irreparable injury 
on account of the same, although Petitioner has made re­
peated efforts to employ Counsel in Winnsboro, and it 
will be and is imperative and absolutely necessary for the 
Petitioner to have a local Attorney in his case for him to 
have a proper defense.

TENTH:— That the friends and relatives of Mr. J. 
Austin Scott employed Mr. Douglas of the local Winns­
boro Bar, an Attorney, to aid the Solicitor and participate 
in the prosecution of the case agains Your Petitioner.

ELEVENTH:—That Columbia, South Carolina is in 
Richland County, it is in the fifth Judicial Circuit, and 
that it is only about thirty miles from where most of the 
witnesses reside. That deponent has a complete defense 
to the charge of murder, and if he is tried where a jury 
is drawn that is unbiased and uninfluenced, justice will 
be done.

TWELFTH:—That the place of trial should be chang­
ed, that there is every reason to believe that Your Pe­
titioner cannot obtain a fair and impartial trial in Fair- 
field County, and the convenience of witnesses and the 
ends of justice will be promoted by changing the place of



12 SUPREME COURT
The State vs. Jim Davis

trial.
Wherefore, petitioner prays that the place of trial be 

changed from Fairfield County to Richland County, or to
37 some other County, and he will ever pray,— ”

On the part of The State, at the hearing of the motion, 
there were submitted six affidavits from various citizens 
of Fairfield County to the effect, that although sentiment 
had been strong against the defendant, still, that it had 
subsided, and that in their judgment they thought that the 
defendant could obtain a fair and impartial trial in Fair- 
field County. An affidavit was offered that Mr. Glenn

38 was not a blood relative of deceased, but that the families 
were distantly connected by marriage.

His Honor merely overruled the motion, without stat­
ing any reasons, whatever, and ordered the defendant to 
go to trial in Fairfield County.

TESTIMONY
M. B. MARTIN, sworn says:—I knew J. Austin Scott; 

he died twenty minutes of twelve o’clock, ninth of Novem­
ber 1925. He was brought to Monticello in the back of a 
truck that morning between eight and nine o’clock. I 
was down there, my brother was driving the truck and 
there were one or two more in it; I assisted in taking

39 him into his house; the Doctor directed that we take him 
to his room, and after that decided that he should be tak­
en to the hospital in Columbia. We packed him in the 
automobile there at Monticello, and drove to the Baptist 
Hospital in Columbia, we took him in the hospital, and 
undressed him, and he died at twenty minutes of twelve.

DR. E. S. WARLICK, sworn says:—I am a physician, 
practice at Monticello, was on November 9th, called to 
see J. Austin Scott, at MONTICELLO, he was lying in a 
truck, he had his clothes on, and he was hollering and 
groaning. I directed that he be taken to his home and 
placed in bed; I found that he had been shot with a shot 
gun in the right side; he had one tear, there was one cen-

40 tral wound with a number of shots scattered about the 
wound, the main course of the load went against the 
shoulder blade, seemed to range just about under his 
arm. I went to Columbia with him, and he died within



SUPREME COURT 13

Appeal from Fairfield County
a few minutes after we got there. I rode on the back 
seat with him to Columbia, and he talked with me.

(At this point the jury was excluded.) Direct Exam­
ination by Mr. Douglas:

Q. Doctor, what statements, and where and when, did 
he make to you, indicating that he had abandoned all 
hope of recovery? A. I think it was about Hinnant’s 
store.

Q. What did he say to you? A. Well, he just said 
he didn’t believe he was going to make it.

Q. He say anything about dying? A. No, sir; he 
just said, “ I don’t believe I am going to make it.”

Q. He say that in reference to going to Columbia, or 
dying? A. In reference to dying is the way I under­
stood him, because I went ahead and answered him, and 
tried to dissuade him from that. I told him, “ Oh, yes, 
you will be all right; I know it is hurting” . I said, “ You 
will naturally feel bad, but I believe you will get well.”

Q. What did he say? A. He said he didn’t believe 
that he would.

Q. In other words, he said he didn’t believe that he 
would recover? A. Yes, sir; that is the way I under­
stood him.

Q. Now, after that statement, that he didn’t believe 
that he was going to make it; and that he didn’t think 
that he would recover; after your trying to assure him 
that he would recover, he said he didn’t believe he would? 
A. Yes, sir.

Q. Did he make a statement after that as to how this 
matter happened? A. Yes, sir; he said—

COURT: Did he make a statement after that, now,
about how the shooting occurred? A. Well, I couldn’t 
say whether it was after—it was either before or after— 
it was just about the same time.

COURT: We must know whether it was before or
after? A. I think it was after.

Q. It was after that statement? A. Yes, sir, I 
think. He kept wanting to stop the car. He said, “ I am 
feeling awfully bad, and uneasy, and hurting; I am not 
lying right in this car” . He said, “ I wish you would 
stop and try to pull me up.” He said, “ I am sinking 
down in the car too much.”



14 SUPREME COURT
The State vs. Jim Davis

Q. Well then, after he made that statement, “ He didn’t 
believe he would recover; he didn’t think he would make 
it,” did he make any other statement as to how this oc­
curred? A. He did make a statement to Mr. McMeekin 
—to all of us. We asked him the question. He said he 
had gone there, and the fellow had just shot—I under­
stood him to say he was about four or five yards from 
him, and the fellow had shot him for nothing, had no 
reason for it; and that he couldn’t do anything because 
it had paralyzed his right arm, and he was helpless and 
he said he give the gun to the boy and told the boy to 
shoot him.

Q. Did he say that neither one of them had spoken a 
word up to the time of the shooting? A. He said they 
never spoke a word.

Q. That Davis didn’t say a word to him? A. He 
said that Davis never said a word. He said, “ He killed 
me for nothing” , that is the way I understood.

CROSS-EXAMINATION by Mr. Southard:
Q. Now, Doctor, I talked to you, didn’t I? A. Yes, 

sir.
Q. Last Court, and you wrote this? A. Yes, sir.
Q. On this paper, didn’t you? A. Yes, sir.
Q. That is your handwriting? A. Yes, sir.
Q. And didn’t you say right then, “ I am not sure he 

said whether ‘I believe or not’ ? A. Yes, sir.
Q. And didn’t I ask you what statement, you said he 

said this, “ I am shot, and he didn’t give me any chance” , 
and you said he made the statement to you at home ? A. 
He made it to some of them at home.

Q. You said you heard it? A. Yes, sir; whispered 
around.

Q. And then you said, “ I told him that I thought he 
would make it.”  A. Yes, sir.

Q. You sitting right on the front seat all of the time, 
McMeekin and Martin, and he made no statement to 
them? A. I didn’t say he made no statement.

Q. Didn’t you say afterwards: “ I was with him until 
he died” ? He was in the truck until he got home, and “I 
was with him all of the time” ? A. I was; yes, sir.

Q. He didn’t say anything about dying until he got 
nearly to Columbia, didn’t you say that, and isn’t that the



SUPREME COURT 15
Appeal from Fairfield County

truth? A. Well, about half way to Columbia when he 
said that.

Q. Over half way to Columbia when he said he 
wouldn’t make it? A. Whether he said “ I don’t believe «  
I am going to make it” , or whether he said “I am not go­
ing to make it” , I don’t remember which one of those. I 
said to him, he wasn’t going' to die; he was going to get 
well.

Q. And then you said you heard him make no state­
ment other than what he said at home? A. I didn’t 
hear him make any statement at home at all; all I heard 
him make was on the road to Columbia.

50Q. ‘‘I am shot.” A. I didn’t hear any statement he 
made at home; he made a statement to others, I didn’t 
hear it; I was busy fixing medicine while he was making 
statements to others.

Q. You were with him all of the time? A. Yes, sir; 
except I was away in the other room fixing a hyperdermic 
of morphine.

Q. How long did it take to fix a hyperdermic of mor­
phine? A. It didn’t take me very long, and it didn’t 
take him long to make the statement either.

Q. What did he say, about, you told him that you didn’t 
think Re was seriously shot, did you? A. No, sir; I told 
him that if he had been shot on the left side, it would 
probably have been more serious, would probably have 61 
killed him instantly, the heart being on that side. I said 
the reason why I took him to the hospital, I thought he 
might live sometime, I couldn’t tell about an internal 
hemorrhage.

Q. And when you told him that you didn’t think he 
was seriously shot— . A. He said he didn’t believe it.

Q. He had a doubt whether he would get well or 
wouldn’t? A. Yes, sir, he had a doubt.

Q. He didn’t know whether he would or wouldn’t?
A. Yes, sir.

BY THE COURT: Doctor, when he made now the
statement to you, you say he made in reference to dying 
or not getting well, at that time when he made that state- 52 
ment were you impressed with the fact whether or not he 
had abandoned all hope of recovery from the wound ? A.
Yes, sir; I was impressed to that effect that he had aban-



16 SUPREME COURT
The State vs. Jim Davis

doned all hope; and that is the reason I tried to encour­
age him, that he wasn’t probably hurt as bad,—

Q. Now the next question after that statement was
63 made, did he make any statement in reference to the oc­

currence of the shooting, after that statement,—not be­
fore it? A. Yes, sir; it was after that he told Tom. 
He said,— Mr. McMeekin said, “ Tell me how it was,” and 
he told him.

Q. That was after the statement? A. Yes, sir, after 
the statement.

Q. And you were impressed that he had abandoned all
64 hopes from what he did say,—you were impressed that he 

had abandoned all hopes of recovery? A. Yes, sir. Mr. 
McMeekin caused him to say forty five yards, and he said 
four or five yards.

Q. We are not talking about that; that is another ques­
tion. The question is now whether he had abandoned all 
hope of life? A. I think he did, from the way he spoke 
it. I think he had abandoned all hope, of course he was 
bleeding internally, and he kept groaning.

Q. Now after he had abandoned all hope, did he make 
any statement in reference to the occurrence of the shoot­
ing ? That is very necessary, was it after or before ? A. 
I think it was after, to the best of my knowledge.

COURT: Well, I think, under that statement, now, it
66 is competent.

MR. SOUTHARD: Note my objection; and note my
objection to the testimony as to that, as to the entire dy­
ing declaration.

SOLICITOR: Certainly; you wouldn’t have to re­
new it.

MR. SOUTHARD: Not only as to this witness, but as
to all others that you all put up.

SOLICITOR: All right.
(The jury at this point was brought back.)
MR. SOUTHARD: Note my objection, and note my

objection to the testimony, as to the entire dying declar­
ation, not only as to this witness, but as to all others that 

56 you put up.
SOLICITOR: All right.
Q. What statement did he make to you, Doctor, as to 

how this matter happened? A. He said some of the



SUPREME COURT 17
Appeal from Fairfield County

girls had married some of the hands working there, and 
he sent a couple o f colored fellows up there and they 
couldn’t get them to come, and so he went up himself, 
and he said just as he got, I believe, in front of the gate, 
he said the man shot him, and when he shot him it par­
alyzed his right arm, and he was helpless to do anything, 
and he give the gun to the colored man and told him to 
shoot him with it.

Q. Now, did he say that he was going,—what he say 
he was going up there for—to talk to Jim Davis? A. 
He said: ‘I just went up there to get them, to get the boys 
to go on back to the road” . They were leaving that 
morning for Georgetown. He said: “ I just went up 
there, and before he said anything,—He said “ I didn’t 
say anything to him, and he didn’t say anything to me.” 
He said: “ He just shot me without saying a word.”

MR. SOUTHARD: Now, your Honor, subject to my
objection, I want to examine him on that.

CROSS-EXAMINATION BY MR. SOUTHARD:
Q. Doctor, you say that Mr. Scott said that these two 

colored boys had been up to this man’s house to get those 
girls? A. He sent them up there, that is what he said, 
he said the boys couldn’t get the girls, they didn’t get 
them.

Q. He said that the boys came back down to the camp, 
didn’t he? A. Yes, sir, and told me—he went up there. 
He told me that Dave Martin met him.

Q. Knowing Mr. Austin Scott as you did, you would 
say that if he did have a pistol on him, he wouldn’t hesi­
tate to go into a negro’s house, whether the negro told 
him to come in or not?

SOLICITOR: We object to that.
COURT: I don’t think that is competent.
MR. SOUTHARD: It is competent on the ground of

what a man of ordinary reason.
THE COURT: That is an opinion of his as to the

man, that can’t be given. We are trying the case on 
facts.

Q. Doctor, you say that he said he was within four or 
five yards of Jim Davis? A. Yes, sir; he said that Jim 
Davis was standing in the door of his house where he liv. 
ed; and that when Jim Davis shot him he paralyzed his



18 SUPREME COURT
The State vs. Jim Davis

right arm so that he could not use his pistol. And that 
he gave his pistol to one of the negroes that was with 
him and told him to shoot him.

RE-DIRECT EXAMINATION BY MR. DOUGLAS:
The cause of Mr. Scott’s death was a gun shot wound; 

he died in the Baptist Hospital, Richland County, from 
internal hemorrhage.

RE-CROSS EXAMINATION BY MR. SOUTHARD:
He was shot on his right breast, the shot scattered 

down on his right arm, the center hole was about as big 
as a half-dollar.

0. S. LINDLER—Direct Examination by Mr. Douglas: 
—I am a policeman at the mill, I went to the penitentiary 
for the defendant, Jim Davis, he said to me about this 
affair: that Mr. Scott came up, that neither one said any­
thing to the other, Mr. Scott said nothing to him, he said 
nothing to Mr. Scott; he just simply shot as he entered 
the gate; he said that these boys were after the girls, 
wanted to carry the girls with them, and he didn’t want 
them to g o ; he said that he had been advised by Mr. Dave 
Martin, that Mr. Martin had told him to shoot anybody 
that came into the yard.

CROSS EXAMINATION: He told me that he had
sent for Mr. Gillie Martin that morning and before the 
shooting.

JAS. MACFIE :—Direct Examination by Mr. Douglas: 
—I am Sheriff of Fairfield County; I saw Jim in the pen­
itentiary. I asked him if either he or Mr. Scott said any­
thing to the other. He said, No, that Mr. Scott didn’t 
say anything to him at all; that he was pushed up to do 
it, that Mr. Dave Martin told him if he couldn’t protect 
his own house to send for him, to keep those girls there 
if he wanted to. I got this gun in Jim Davis’ house; it is 
in this County. I asked him if he said anything to Mr. 
Scott, and he said No, sir.

CROSS-EXAMINATION BY MR. SOUTHARD:
I knew the reputation of Austin Scott for violence 

and turbulence among’st negroes; and it was bad.
THE COURT: ANSWER is stricken out, that is not

reputation, general reputation from all the people.
WITNESS: I couldn’t say from all. This is a picture

of JIM DAVIS house where he lived when J. AUSTIN



SUPREME COURT 19
Appeal from Fairfield County

SCOTT was killed, showing the front door and gate. 
Pictures offered in evidence, marked EXHIBITS NOS. 1 
and 2.

EXHIBIT NO. 2

JACK JEWETT, sworn testified as follows:—Direct 
Examination by Mr. Douglas:—I am twenty years of age. 

Q. You married? A. Yes, sir.
MR. SOUTHARD: I object to that, he is trying to

prove a marriage, the only way to prove that—.
COURT:—That is a side issue.
MR. SOUTHARD:—No, sir; the only way to prove a



20 SUPREME COURT
The State vs. Jim Davis

marriage is to produce the record.
COURT:—Well, I think that question is competent. 

Go ahead.
THE WITNESS:—Yes, sir, I am married; my wife is 

Sarah Jewett; she was Sarah Davis, we married 27th., 
of last October, at Greenwood, S. C., she is sixteen years 
of age.

MR. SOUTHARD: Then, for another reason I ob­
ject, that before you can have a legal marriage, if the 
parents are living—.

COURT:—I don’t think that is a material issue for 
killing a man, I can’t see how it can be.

WITNESS continuing:—When I was married she said 
she was sixteen, after we were married we stayed a week 
at Greenwood, then we come back to the camp betwixt 
the Salem Crossroads and Monticello; us was work­
ing on the road, got it done, and was fixing to leave. 
I was one of the hands there, and I was staying at 
Jim Davis’ house; me and my wife and Willie and his 
wife stayed in one room at his house; when us come back 
from Greenwood Jim Davis told us to come to his house 
and stay, he told us that he was not mad with us; I eat 
at Jim Davis and at the camp; I had been working on 
the road near Monticello about six months.

Well, now what happened on the morning of the 9th., 
of November last year, the day of this shooting? Tell 
us everything. A. When us left that morning, me and 
Millie left Mr. Jim s Monday morning to go to the camp, 
and went to the camp and be packing up to move to 
Georgetown; and us packed up, and got the truck and 
went back over to Mr. Jim’s house. He said: “Don’t 
come in,” we didn’t go in.

Q. What else did he say? A. We turned around
then and went on back and Willie and Mr. Scott__.

Q. And you say he told you not to come in? A. Yes, 
sir.

Q. Did he tell you anything about talking to your 
wife? A. He told us to stand at the window and talk 
to them, but don’t come in, we didn’t go in. We turn­
ed around and went on back to the camp, and Willie 
went on down to the corral to where Mr. Scott was. I 
met Mr. Scott and them coming from the corral. He said:



SUPREME COURT 21

Appeal from Fairfield County
“Jack where is your wife? I said: “ She at Mr. Jim’s.”
He said: “ You get her?” I said: “No, sir, he won’t let 
us have her.” He said: “Well, I am going over there 
and talk to him.” He said: “ Capt. George, where is your 73 
pistol?” Captain said: “It is over there in my suit case, 
in my hand bag.” He got it, and broke it down and 
looked at it—Captain George done gone off. Then he 
said: “ Ain’t but four balls in it.”  He said: “ Well, that 
is enough to bring back two or three.” He got on the 
truck, and us climbed on then, and we got to Mr. Martin’s,
Mr. Martin was standing in the yard, and Mr. Martin 
stopped, and Mr. Martin said: “Where you going?” He 74 
said: “ Jim has sent one of the boys over here to tell me 
to come over there.” He says: “ If you are going I won’t 
go.” He said: “ The girls having, Mr. Martin said:
“The boys’ wives won’t go.” I said: “ Yes, sir, Sarah 
and them won’t go.” He said: “ If you are going over 
there Scott, I won’t go.” Us went on. Us got the truck there 
and turned about half way round; it stopped betwixt 
the house and the barn; it wasn’t right to the house, it 
was a good ways from the house, Mr. Scott got off the 
truck I got off on the right side, Mr. Scott got off on 
the right side, Willie Worthy was driving, and Willie 
was standing on the left hand side where he got out from 
under the steering wheel, and he walked on to the house 
with both hands in his pockets, front pockets; he was 
gwining toward the house at an ordinary gait; and he 
got to the gate and stooped down, a vine was growing up 
over the gate, there is an arch over the gate, when he 
straightened half way up, I seen the smoke from the gun 
and shot him. He took his left hand and threw across 
his right breast, and he said: “ Jack, come and get me.”
I met him fifteen or sixteen feet of the truck and caught 
my arm around him; I had him in front, I changed to 
right, I found his pistol, he said: “ Take my pistol, and 
shoot—.

Q. For what purpose? A. He said: “ Take my pistol 
and shoot for your lives.” I took the pistol and shot 
once on the front of the truck, and once on the back. I 76
had been shot then, and so I shot across the field, I shot 
twice,— and I run across th field and told Captain George 
about it, and come back and got Mr. Scott in the truck.



22 SUPREME COURT
The State vs. Jim Davis

Q. You say Mr. Scott got off the truck? A. Yes, sir.
Q. You didn’t follow Mr. Scott? A. No, sir.
Q. He went on by himself? A. Yes, sir.
Q. And then he went on and started in the gate? 

A. Yes, sir.
Q. Was there any gate that opened? A. Yes, sir 

there was a gate to it, but I don’t know whether it was 
fastened or not.

Q. A vine grew over the arch way? A. Yes, sir.
Q. You say Mr. Scott came in and he had to stoop 

a little to get under the vine? A. Yes, sir, he had to stoop 
about half way, and as he straightened up he was shot. 
A. I saw the gun at the moment that it was fired; I 
saw the smoke from the gun, it come out of the front 
door; I didn’t hear Mr. Scott say anything before he was 
shot; and I didn’t hear Jim Davis say anything, I could 
have heard Jim Davis if he had talked pretty loud; I 
could have heard Mr. Scott. After Mr. Scott was shot he 
turned around and came back toward me, I met him, I 
went towards him, and put my arms around him; as I 
was going toward Mr. Scott I got shot, and a part of the 
shot hit Mr. Scott also; both of us were leaving the house 
when I got shot; Mr. Scott went and knelt down behind 
a wagon between the truck and the back yard, he was 
spitting up blood; Jim Davis was shooting at us at the 
truck, I was shooting from in front of the truck and from 
behind it also. At the time that I was shot, I was fixing to 
leave.

Q. You said something awhile ago about being per­
mitted to talk to your wife through the window, what 
about that? A. He told us us could talk to them, we 
couldn’t go in there; he wouldn’t let us in. I made no at­
tempt to go in there, we were all talking, we thought Mr. 
Scott could do more with him than us talking with him. 
My wife was in the house. I am now working at George­
town; Mr. Scott usually walked with his hands in his 
pockets. He had the pistol in his right hand hip pocket, 
that is where I pulled it out, after Mr. Scott was shot; 
Mr. Scott never pulled his pistol, I was looking at him all 
of the time. I was shot when I had Mr. Scott in my arms, 
Mr. Scott told us to shoot to save our lives; when I got 
the pistol out of Mr. Scott’s pocket, he said “Will, come



SUPREME COURT 23

Appeal from Fairfield County-
get me” , and Will started to him, and he shot at Will, 
and then I shot, and I run behind the truck and shot 
again, and that time he run behind the truck, and time I 
shot two times I run, and Will run then.

CROSS-EXAMINATION BY MR. SOUTHARD: This 
house was Jim Davis’, Jim lived in it with his wife and 
seven children.

Subject to objection about the marriage Mr. Southard 
continued his examination:— On Sunday before us mar­
ried I took Sarah Davis, Walter Owens took Clara Davis, 
who is now Clara Worthy; and Sleepy, or Lieut. Greer 
took Sarah Rabb and us all went to Columbia; we were 
not married then; I didn’t ask Jim if I could take his 
girls off; I slept with Sarah; Clara and Walter Owens 
stayed together, and Sarah Rabb and Lieut. Greer stayed 
together; all of us slept in the same room together,—time 
day broke, us left and went to Greenwood; and married, 
Sarah married at sixteen; I had no written authority 
from Jim Davis for us to get married; Walter Owens 
come on home, and left Clara over there, and then Willie 
Worthy went to Greenwood and Willie and Clara mar­
ried; after us come back, Jim Davis told us that he knew 
that his girls were ruined, and that if we were married 
to them, that we could stay at his house; he didn’t say 
anything about proving to him that we was married.

I swore to an affidavit before Miss Beaty; I said: PER­
SONALLY comes Jack Jewett who after being duly sworn 
says that he is the one who married Jim Davis’ daughter 
Sarah Davis sometime toward the latter part of October 
1925, that toward the latter part of October the deponent 
returned with his wife Sarah to Jim Davis’ house; that 
Jim Davis told me and Willie Worthy that we could stay 
there at his house with the girls, but that he wanted us 
to show to him that we were married to the girls (wit­
ness says that he does not remember having heard the 
last clause read). On the morning that Mr. Austin 
Scott was killed, me and Willie Worthy went down to 
the camp and got the truck, and went back up to Jim 
Davis’ house for the purpose of getting Clara Worthy and 
Sarah Davis Jewett; that when we got up in Jim Davis’ 
yard, Jim Davis came out of the house and told me and 
Willie Worthy that we could not go into his house, that



24 SUPREME COURT
The State vs. Jim Davis

if we wanted to talk to the girls that we could talk to 
them out of the window, and we went to the window and 
talked to them, Jim Davis told us that we could not go 

86 into his house. Then we got in the truck and went on 
back to the camp. I then told Mr. Scott that I wanted 
him to go up to Jim Davis’ and talk to him and get our 
wives. Capt. George Clowder told Mr. Scott where his 
pistol was, after Mr. Scott asked him where it was, and 
he went over there and got it; he put the pistol in his 
right hip pocket; it was a shiney pistol, and was a 38 spe­
cial ; Mr. Scott opened up the pistol and looked at it, while 

86 he was in camp, and it had four cartridges in it, we rode 
up to Mr. Dave Martin’s; Mr. Scott asked Mr. Martin 
what about going over there and talking with Jim Davis, 
and Mr. Martin told him to go on, if the girls wanted to 
go. When we got there Mr. Scott started toward Jim 
Davis’ house, I cannot say that Jim Davis told him not 
to come in or not, I do not know. When we were over 
there Jim Davis told us that we could not come in there 
and in his house, and then we got Mr. Austin Scott to go 
over there for us.”

That is true. (Affidavit offered in evidence. Shutter to 
house offered in evidence.) He made us go to the end 
window outside of the fence, towards the oak tree to 
talk to the girls.

When me and Willie drove up there for the girls that 
morning, Jim Davis was standing in his yard; he said 
that we couldn’t go in there, that if we wanted to talk 
to the girls that we could talk to them out of this window; 
Jim Davis told me and Willie that he was not going to let 
the girls go to Georgetown with us; we then got on the 
truck and went back to the camp.

Q. As soon as you got back to the camp, you saw Mr. 
Austin Scott? A. Yes, sir.

Q. Then, did you tell Mr. Scott that Jim Davis told 
you and Willie not to go into his house? A. Yes, sir.

Q. Mr. Scott said he would go over there and talk to 
him? A. Yes, sir.

Q. And he turned around, immediately? A. Yes, 
sir.

Q. And asked Captain George where his pistol was? 
A. Yes, sir.



SUPREME COURT 25
Appeal from Fairfield County

Q. And Captain George told him that it was in his 
hand bag? A. Yes, sir.

Q. And Mr. Scott went there and got it, the pistol? 
A. Yes, sir.

Q. Then it was he broke it down? A. Yes, sir.
Q. And counted that it had four good cartridges in it, 

didn’t he? A. Yes, sir; four in it.
Q. Then he snapped it back together and got on the 

truck, didn’t he? A. Yes, sir.
Q. And then you all immediately started back to Jim 

Davis’ house for the purpose of getting your wives, didn’t 
you? A. Yes, sir.

Q. The camp was just about two hundred yards be­
low Mr. D. R. Martin’s house? A. Yes, sir, something 
like that. When we drove up Mr. Martin was out there 
in his front yard. We stopped, Will was driving.

Q. Mr. Scott was sitting on that truck with that 38 
Special in his pocket, wasn’t he? A. Yes, sir.

Q. With four good cartridges in it? A. Yes, sir.
Q. And said that that was enough? A. Yes, sir.
Q. And said that would bring back two or three good 

ones? A. Yes, sir.
Q. Didn’t, at that time Mr. Dave Martin ask Mr. Scott 

if you all were going over to Old Jim Davis’ house; didn’t 
he ask Mr. Scott if he was going? A. Yes, sir. He 
told him that he was going.

Q. Didn’t, at that time, Mr. Martin say to Mr. Scott, 
“ Old Jim has sent for me” ? A. Yes, sir; he said it.

Q. “ And I am going over there” ? A. Yes, sir, he 
was going; but if Scott was going he wouldn’t go.

Q. Didn’t at that time Mr. Dave Martin start to get 
on that truck? A. I didn’t see him.

Q. Didn’t he step up on that truck? A. No, sir.
Q. And weren’t you so mad you about to burst out 

crying? A. I wasn’t crying, but I was mad about I 
couldn’t get my wife.

Q. Didn’t Mr. Dave Martin, at that time, start to get 
up on that truck, and didn’t he say to you, “ You get up 
and let me sit there” or words to that effect? A. No, sir.

Q. Didn’t you start to get up? A. No, sir; I ain’t 
never moved.

Q. And when you started to get up didn’t Mr. Austin



26 SUPREME COURT
The State vs. Jim Davis

Scott say to Mr. Dave Martin, “ I will go over there and 
get them” , or words to that effect ? A. I didn’t start to 
get up, but he told Mr. Martin that he would go over there 
and talk to him and get them.

Q. When he told Mr. Martin “I will go over there and 
get them” , didn’t Mr. Martin step down off of the truck? 
A. He never got up on it.

Q. And didn’t he say to Mr. Scott at that time, “ I am 
going but I can walk” , or words to that effect ? A. Yes, 
sir. He didn’t get up on the truck no time; he come on 
down the road walking behind us.

Q. So when yoTTall went on you say that Mr. Dave R. 
Martin was coming on down the road behind you? A. 
Yes, sir; coming on behind the truck. I didn’t see Mr. 
Gillie Martin, if we passed him.

Q. You were intent on going to Jim Davis’, weren’t 
you? A. Yes, sir.

Q. On Sunday evening, the evening before that, 
weren’t you down at the camp? A. Yes, sir; I was 
down at the camp.

Q. Wasn’t Mr. Austin Scott down at the camp on 
Sunday afternoon? A. Yes, sir; he come down there.

Q. Mr. Scott was going as boss man to Georgetown? 
A. Yes, sir; he was the boss man.

Q. And he was going to Georgetown with you ne­
groes? A. Yes, sir.

Q. You all were going to take those girls if you could 
get them, and take them out there in Georgetown County 
and live out on the road camp, in tents? A. Yes, sir; 
us lived in tents.

Q. And Old Jim had told you that he had rather fol­
low h!s girls to the graveyard? A. He told us he didn’t 
want them to go.

Q. And didn’t he tell you that he had rather follow 
his girls to the graveyard than to see them living in a 
negro road camp? A. He said he didn’t want them to 
go and live in any grade camp.

On Sunday afternoon before this happened on the fol­
lowing Monday morning I did not ask Mr. Austin Scott, 
“Are you going to do what I have asked you to do” , and 
he did not tell me “Yes” , and I said come up to Jim Davis’ 
house in the morning and get our wives” , and he did not



SUPREME COURT 27
Appeal from Fairfield County-

say “yes” , and then I did not say “we will get them or 
raise hell or have a damn war one” , and nothing like that.
I did not discuss the going of the girls with Jim Davis on 
Sunday night. Robt. Duffie came over there that night, 
he and his wife.

Q. Now, the next morning when you went up there 
to Jim’s house, and when Jim made you stand on that 
side of that house at that time and told you boys that you 
couldn’t go into his house? A. Yes, sir.

Q. He did that? A. Yes, sir.
Q. Didn’t you turn around to Willie Worthy and say 

to him, talking about Clara, that if you were in his place, 98 
you would take her or leave her laying there in the yard ?
A. No, sir; he didn’t have any thing to leave her laying 
there with but his hand.

Q. Well, I will ask you this; when Jim Davis told you 
that you couldn’t get the girls? A. Yes, sir; he told us.

Q. He told you that? A. Yes, sir.
Q. You all understood that? A. We understood not 

to go into the house.
Q. He didn’t want you there, did he? A. Yes, sir.
Q. You understood that? A. Yes, sir; it was his 

house and us couldn’t go into his house.
Q. And you all told Mr. Scott that, didn’t you? A.

Yes, sir.
Q. Now, when Jim Davis told you that, and that you 99 

couldn’t go into his house, didn’t you first start off, what 
you say to him? A. Didn’t say anything to him.

Q. Didn’t you tell him that you were coming back?
A. No, sir.

Q. Didn’t you intend to come back? A. Yes, sir.
Q. How long did you intend to be gone? A. No 

quicker than the truck could run there and back.
Q. Who were you going down there to get? A Go­

ing down to tell Cap’n George about it.
Q. Didn’t you turn around to Jim at that time and 

tell him that “We are going to the camp and get Mr. Aus­
tin Scott” ? A. No, sir; I didn’t say anything at all.

Q. “ And when we get back we are going to get the 100 
girls or raise hell or have a damn war one” ? A. No, 
sir; I didn’t say a word, only.

Q. You know Horace Gray? A. Yes, sir; I seen



28 SUPREME COURT
The State vs. Jim Davis 

him once or twice.
Q. That is that negro that I had over here at the last 

Court? A. I seen him over here.
Q. When did you first see that negro? A. George­

town ; he is over there on the camp.
He wasn’t working on the same camp I was on; he 

ain’t talked to me; I did tell him “ I need some money, I 
have got to go to Court; look up here by the side of my 
ear and you will see where that gun touched me; I mar­
ried a girl, me and another boy married sisters; their 
daddy didn’t agree for them to leave; their daddy started 
us away from there and told us not to come back again; 
that we went to the camp and got Mr. Scott, and Mr. 
Scott said that the girl’s daddy had not start any­
thing with him; that then we all went up to the girl’s 
daddy’s house; drove up to the gate; and the girls’ daddy 
told us not to come in his yard,” I didn’t tell him nothing 
whatever in that affidavit.

Mr. Scott did say that he was shot dead; I did make 
two shots at Jim Davis.

(Here affidavit was offered in Evidence, and marked 
Exhibit 3). It is as follows:

Personally comes Horace Gray, who after being duly 
sworn says that he lives at Greer, South Carolina, that 
he is now the butcher for Finley’s Market 67; that de­
ponent went to Georgetown, South Carolina, and worked 
for Clyde Clement, and Mr. Murph for Blankenship Com­
pany grading roads, that he was in a camp close to Jack 
Jewett, and deponent knows Jack Jewett; that in George­
town at the said Camp, Jack Jewett said: “ I need some 
money, I got to go to Court” ; he said, “ look up here by 
the side of my ear (right) and you will see where that 
shot gun touched me.” I then asked him “What was you 
doing with a shot gun,” and he said, “I married a girl, 
me and another boy married sisters, that their daddy 
did not agree for them to leave with them; that their 
daddy started them away from there and back to the 
camp, and that their daddy told them (Jack and this 
other boy) not to come back there again” , then he said 
that they went to the camp and got in a truck and went 
up to the girls’ daddy’s house, that the girls’ daddy told 
them to leave and not to come back there again, he said,



SUPREME COURT 29
Appeal from Fairfield County-

then they go back to the camp, and the boys were laugh­
ing at them not being able to get the girls; that then Mr. 
Scott told them to get the truck, and he asked some man 
for his pistol, and got the pistol, and then told Jack to 
come on and get on the truck that he would get the girls; 
he said that Mr. Scott said that the girl’s daddy had bet­
ter not start nothing with him. He said that they went 
up there; he said that they drove up to the gate, and then 
the girl’s daddy told them not to come in his yard, he said 
Mr. Scott started on anyway, and when he stooped to go 
under the hedge the girl’s daddy shot Mr. Scott; he said 
as Mr. Scott was falling, he caught him, and Mr. Scott 
told him to get that pistol out of his pocket and kill him 
because he was shot to death; he said he got the pistol 
and made two shots, he said he could have killed him and 
would have killed him, but his wife come to the door, 
that his wife stood in the door until her daddy got out of 
the door, and then he run. I said “You could have gotten 
her without all that trouble,” and he said “Yes, I could 
have, but I didn’t take the second thought then” , he said, 
“ he would not have killed Mr. Austin Scott, but that this 
negro was scared of him; he, said“ Mr. Scott had got a 
job to go to Georgetown with us, that he was going to be 
the boss man-'at Georgetown,” he said “ I thought that he 
was bad, and I was going to follow him to get my wife” , 
he said that his wife wanted to go, but that the other girl 
did not want to g o ; he said that a white man raised him, 
kept him, and that if he had known where the old negro 
was that he would have gone over there and killed him 
himself. I then said “Why do you want to kill him after 
you have got your wife?” He said, “Look up here beside 
of my ear and see where I am shot at; I never allow no 
man to shoot me and I not kill him.” I asked him will he 
get time, and he said after his time is over he better not 
meet with me, he ain’t clear with me” , I said, “are you 
some kind of police or Sheriff” , he said, “ No, but I try 
my own cases.” I then got up and left him sitting there.

This was at Georgetown, at the camp, about three weeks 
ago.

Horace Gray.
Sworn to before me 13th. of February, 1925.
John L. Lancaster, Magistrate for Spartanburg Coun-



30 SUPREME COURT
The State vs. Jim Davis 

ty, South Carolina.”
I am from Darlington County, I can’t tell you what 

part; but I live between Darlington, Bennettsville, Harts- 
109 ville, and Lydia. There is a public road leading from Mr. 

Dave Martin’s on up past Mr. Gillie Martin’s; there is 
only one road for automobiles or wagons which turns off 
of the public road and leads down to Jim Davis’ house; it 
turns down at the oak tree and goes down to Jim Davis’ 
house; on the morning that Mr. Scott was killed we all 
came up this public road, turned off at the oak tree, went 
down to Jim Davis’ house, turned the truck partly 

no around; around the private road from the public road, it
is 537 feet and 5 inches to Jim Davis’ house; then there 
is a path which leads from Jim Davis’ house straight 
across the field to the public road; then there is another 
path which leads from the front of Jim Davis’ house to­
ward Mr. Gillie Martin’s house; the private road comes 
down between the house and barn, and back of it is the 
back lot, and the outhouses, chicken house and well, and 
leading out of the back door of Jim’s house are two paths.

Jim Davis’ was standing in his front door; and Mr. 
Scott was going in this gate; and it is four or five steps 
from the gate to the front door.

Exhibit 5 offered in evidence, 
m

EXHIBIT NO. 5

REDIRECT EXAMINATION BY MR. DOUGLAS: 
Horace Gray is not an intimate friend of mine, he said 

he lived at Greer. When we come to Jim Davis’ we come 
up the hill, and turns off and goes to Mr. Jim’s, the truck



SUPREME COURT 31

Appeal from Fairfield County
come around and stopped about ten feet from the barn; 
we cut in the road and headed it across the road. There 
was a fence around the house, but no fence around the 
barn, the truck was about twenty five or thirty feet from 
the fence, the truck was nearer the barn than it was to 
the house; the truck stopped, Mr. Scott got off, and walk­
ed in the gate, stooped and when he kinder raised up he 
was shot, he turned around and came back and somebody 
was still shooting; the truck was between the house and 
the barn, the barn set on the side of the house; I saw the 
shot come out of the front door.

RECROSS EXAMINATION BY MR. SOUTHARD: 
After the shooting I went back up to Jim Davis’ house; 

if I saw Mr. Dave Martin up there at that time I do not 
know it ; I did not tell Mr. Dave Martin at that time that 
Jim told Mr. Scott not to come in or words to that ef­
fect. I said if Jim told Mr. Scott not to come in I didn’t 
hear that; if Mr. Scott said anything, I didn’t hear. I told 
you at Winnsboro about going into Jim Davis’ house 
When we got there Mr. Scott started toward Jim Davis’ 
house; I cannot say that Jim Davis told him not to come in 
or not, I do not know.

REDIRECT EXAMINATION BY MR. DOUGLAS:
If Jim had talked loud enough I could have heard him; 

us was a good piece from the barn. I am living with my 
wife now, at Georgetown.

WILL WORTHY, a witness for the State, sworn says: 
Direct Examination by Mr. Douglas:
I am twenty-one year old; am married to Clara Davis. 

(Mr. Southard: Same objection to that same line,—same 
objection as to proof of marriage, that I made in the tes­
timony of Jack Jewett; and it is understood that my ob­
jection goes throughout the testimony as to any purport­
ed marriage, and it is overruled.) I married in Green­
wood; she gave her age in as eighteen; I was living on 
the camp, near Monticello, when Mr. Scott got killed; af­
ter I married I stayed at Jim Davis’ till we left, me and 
my wife stayed together, occupied the same bed.

Q. Well, when did you first have any trouble with 
Jim Davis, any unpleasantness in reference to your wife? 
A. No time along that time. When we got ready to 
leave that morning he asked us was us going to carry our



32 SUPREME COURT
The State vs. Jim Davis

wives with us; we told him “yes.”
Q. What did he say? A. He never said anything.
Q. Well, go on and tell me what happened? A. We 

went on back to the camp.
Q. When did he tell you that you couldn’t take them? 

Did he ever tell you that you couldn’t take them? A. 
He told us after we went back the second time. We went 
on to the camp, and when we got ready to leave we went 
back for our wives, and he told us that we cauldn’t get 
them; we could talk to them through the window, but not 
to go into the house.

Q. All right. A. So then we went back to the camp. 
I asked Cap’n George to go over there and get them for 
me. I went on and Mr. Scott asked me was they fixing to 
go with us. I told him, “ No, sir.” He said “ He wouldn’t 
let you have them?” I said, “ No, sir.” He said, “ I will go 
over there and talk with him.” He said he knew him bet­
ter than we did. He come on up there to Captain George 
and asked him where was the pistol, and he told him that 
it was in his hand bag. He taken the pistol out, and 
there wasn’t but four balls. He said: “Oh, well that is 
enough to bring back two or three” , and we went on the 
truck, and Dave Martin was coming towards the road, 
and we stopped; and Mr. Scott said, “ Come on and go 
with us” . He said “Where are you going?” He said, “ I 
am going to Jim Davis’ to talk with him about these boys’ 
wives, to let them go.” He said, “He just sent one of the 
boys down here for me; but if you are going, I won’t go.” 
And he said “ Boys, do you want them to go or stay?” 
“Yes, sir” . He said, “ Boys, girls want to go?” “All right, 
I can’t object for you all going for your wives,” and they 
told Mr. Martin. We went over there, and I turned the 
truck around, and Mr. Scott got off on the right hand 
side of the truck, and off side of the truck, and walked to 
the house with his hands in his pockets.

Q. Where did you stop the truck? A. Stopped the 
truck on the north side of the barn, about ten feet from 
the barn.

Q. Up what way from the barn? A. Little this 
way.

Q. Ten feet from the barn? A. Yes, sir, and so he 
got off the truck and went on to the house, and just as



SUPREME COURT 33

The State vs. Jim Davis
he got to the gate and stopped under the vine, I saw the 
muzzle of a gun and fire from it; and he taken his left 
hand from out of his pocket and put it across his breast; 
he said “come and get me, for I am shot” ; and Jack went 121 
and got him and put his left hand around him, and by 
that time another shot, and he said “Jack, take the pis­
tol.”

Q. That other shot came from where? A. Out of 
the front door.

Q. Who was hit by that shot? A. Jack and Mr.
Scott both.

Q. At that time, were you going toward the house 122 
or from the house? A. Neither, was standing still.

Q. Which way were their backs turned? A. Backs 
turned north.

Q. Turned toward the house? A. Yes, sir.
Q. All right. A. Mr. Scott walked off about ten 

feet and kneeled down on his knees, and commenced 
coughing up blood; and he called me to come and get him;
I started for him, and there was another shot, and I come 
back behind the truck; and then Jack shot twice; and we 
run across the field over there.

Q. Now when that shot was fired, Mr. Scott was 
down coughing up blood? A. Yes, sir.

Q. Where was he then ? A. On the west side of the 
wagon. 123

Q. And which side of the truck? A. The west side 
of the wagon and behind the truck.

Q. The wagon behind the truck or not? You mean 
behind the truck, the rear end? A. Yes, sir, the rear 
end of the truck.

Q. Go ahead. A. That is about all there is to it.
Q. That you ran, you say? A.. Yes, sir.
Q. Now Will what did Mr. Scott say when he was 

coming up to the house, if anything ? A. He never said 
anything.

Q. He never opened his mouth ? What did Jim Davis 
say ? A. I never heard neither one say anything.

Q. State whether or not you could have heard Jim 124 
Davis say anything. A. Yes, sir; look like to me if they 
had spoken I could have heard them; if they had talked 
anyways loud at all.



34 SUPREME COURT
Appeal from Fairfield County

Q. How close was you to the front gate when Mr. 
Scott went in it? A. About fifty feet.

Q. Did you see the gun ? A. I saw the muzzle of the 
gun.

Q. Now show me how Mr. Scott was walking. A. 
He went up there to go into the gate walking just about 
in the natural gait, with both hands in his front pockets. 
It was his habit to walk with both of his hands in his 
front pockets. Mr. Scott’s pistol was in his right hind 
pocket; he never drew his pistol, and never made any 
attempt to draw it.

COURT: What did you say he did? A. Not anything,
he didn’t say anything. He took his hand out of his 
pocket.

CROSS EXAMINATION BY MR. SOUTHARD:
I married a single woman, she left with Walter Owens, 

and went to Greenwood, she sent for me, and I went over 
there on October 28th.

Q. So, then, Walter Owens was an unrequited love, 
I guess you would term it? A. Yes, sir. I don’t know 
what became of Sarah Rabb and Lieut Greer, or Sleepy; 
they all slipped away from Jim Davis’ that Sunday, when 
we come back Jim Davis said to me, “ You and sister 
married too?” and I told him, “ Yes” , and he never said 
a word.

Q. Now when you all got ready to gG to George­
town, Clara said she didn’t want to go? A, No, sir; 
she didn’t tell me.

Q. She didn’t tell you? A. No, sir.
Q. Didn’t Clara refuse to go, and didn’t Jim object 

to her going? A. He object to her going, and she re­
fused to go; and I will tell you why everything happen­
ed like it did, she told me that she wanted to stay there 
with her mother, and see what became of her father.

Q. Jim objected to her going? And Clara refused to 
go to Georgetown? A. She refused to go after things 
turned up; she was going before then.

Q. When you and Jack came back up there in the 
truck, Old Jim was out in the yard, wasn’t he? A. Yes, 
sir.

Q. And when you drove up, what was the first thing 
Old Jim said? A. He said. Will, you and Jack don’t



SUPREME COURT 35
Appeal from Fairfield County-

go into my house. I have been good to you boys.”
Q. He said, “Will, you and Jack don’t go into my 

house?” A. Yes, sir.
Q. “I have been good to you boys?” A. Yes, sir, 129 

that is what he said.
Q. What else did he say? A. He said, “ You can 

talk to the girls through the window, but don’t go into 
my house.”

Q. He would not let you all go into his house, would 
he? A. No, sir.

Q. And you and Jack went to that end window, the 
one in his house, and talked to them a minute or two? 180 
A. Yes, sir.

Q. And then after you talked to them a minute or 
two, what did Jack say? A. He didn’t say anything, 
but let’s go.

Q. Didn’t he say to Jim Davis, “We are going for 
Mr. Austin Scott; when we return there will be war?”
A. He didn’t say it in my presence.

Q. You didn’t hear him say that? A. We were 
both right together.

Q. You both made an affidavit in this case? A. I 
made an affidavit. I didn’t make an affidavit that he 
said there was going to be war.

Q. You all were gone how long? A. About thirty 
minutes. 131

Q. Where did you go from Jim’s house? A. To 
the camp.

Q. When you got to the camp, whom did you see?
A. Cap’n George.

Q. When did you see Mr. Scott? A. Well, I saw 
them both at the same time, they were not over fifteen 
or twenty feet apart.

Q. At that time, who was it that asked you if you 
got the girls? A. Cap’n George.

Q. And when you all told him, “ No” , what did Mr.
Scott say? A. Mr. Scott didn’t say anything, because 
he wasn’t there at the present time.

Q. When he came up, what did he say? A. He 132
didn’t come up, I went down where they were taking 
down the wire.

Q. You didn’t go down there for him? A. No, sir.



36 SUPREME COURT
The State vs. Jim Davis

I went down there where they were taking down the wire.
Q. Did Mr. Scott come up where Jack and Capt. George 

were? A. No, sir, he met Jack and Capt. George.
Q. What did Mr. Scott say? A. He said, “ I am 

going over there and see if I can’t get Jim Davis about 
the boys getting their wives. He said they are married 
and he ought to let them go. Then he turned around 
and asked Capt. George for his pistol.

Q. What kind of pistol? A. A 38 Special.
Q. What did Cap’t George tell him? A. That it was 

there in his hand bag.
Q. What did Mr. Scott do? tell the jury. A. He 

went there and got it and broke it down and looked in it, 
he said, “ There ain’t but four balls, but, that is enough 
to bring back two or three.”

Q. He said there wasn’t but four balls, but that 
was enough to bring back two or three? A. Yes, sir.

Q. What did he do? A. Put it in his pocket.
Q. He had on a coat, or not? A. Yes, sir, he had 

on a coat.
Q. When he put it in his pocket, what did he do next? 

A. Got on the truck, and said, “ Let’s go.” .
Q. What did he say when he got on the truck? A. 

He didn’t say anything.
Q. You all drove them up to where Mr. Dave Martin 

lives didn’t you? A. Yes, sir.
Q. You were driving? A. Yes, sir.
A. Next to you, was sitting who? A. Mr. Scott.
Q. And then in the same seat was sitting who? A. 

Jack.
Q. Right by the side of Mr. Scott? A. Yes, sir.
Q. When you got to Mr. Dave Martin’s house what 

happened? tell the jury. A. Mr. Dave Martin came 
walking out.

Q. Came walking out from his house to where, to 
the road? A. To the road.

Q. Who was with Mr. Dave Martin? A. By himself.
Q. Who stopped the truck? A. Mr. Scott told me 

to stop.
Q. Did you see Mr. Dave Martin wave at you? A. 

No, sir.
Q. Did Mr. Martin motion you, or signal you to



SUPREME COURT 37

Appeal from Fairfield County
stop? A. No, sir; Mr. Martin had his left hand in his 
pocket, and a cigarette in his right hand.

Q. With a cigarette in his right hand, did he wave? 
A. No, sir.

Q. When the truck stopped, did Mr. Dave Martin 
say to Mr. Scott, “Are you all going to old Jim’s house?” 
A. No, sir.

A. What did he say? A. He didn’t say anything. 
Scott told him that he was going.

Q. Mr. Scott told him where he was going ? A. Yes, 
sir. L

Q. Didn’t Mr. Martin at that time say to Mr. Scott, 
“Old Jim had sent for me?” A. Yes, sir.

Q. He said, “ He is having trouble about his girls go­
ing off ?” A. He didn’t say anything about the trouble.

Q. I am going up there myself? A. He said, 
“ I have started myself but if you are going, I won’t go.”

Q. At that time, didn’t Mr. Martin tell Jack to get 
up and let him sit down? A. No, sir; Mr. Scott said, 
“ Get up Jack and let Mr. Martin sit down.”

Q. Mr. Scott said—let’s get that straight; Mr. Scott 
said, “ Get up Jack” ? A. Yes, sir.

Q. “And let Mr. Martin sit down” ? A. Yes, sir.
Q. And then did Jack start to get up? A. He at­

tempted to get up.
Q. Jack was mad? A. I don’t know about mad.
Q. You were mad? A. I wasn’t mad.
Q. You didn’t care much whether Clara went with 

you? A. I wanted her to go, but I wasn’t going to 
raise no sand about it.

Q. Wasn’t going to raise no sand about Clara? A. 
No, sir.

Q. But you knew that sand was going to be raised, 
didn’t you? A. No, sir, I didn’t know nothing about it.

Q. At that time, didn’t Mr. Martin start to get up 
on that truck? A. No, sir.

Q. So, that isn’t true? A. No, sir; Mr. Martin 
didn’t get any closer to that truck than to here to that 
table.

Q. At that time, when he had put one foot up on 
that truck, Mr. Martin? A. No, sir; Mr. Martin didn’t 
come no closer to the truck.



38 SUPREME COURT
The State vs. Jim Davis

Q. Didn’t Mr. Scott say to Mr. Martin, “ I’ll go over 
and get them ?” A. He said, “ I’ll go over there and get 
them.”

Q. And then didn’t Mr. Dave Martin say, “Well, I 
am going , but I can walk, or words to that effect” ? A. 
He didn’t say that in our presence. The truck then start, 
ed on; I never looked back; up the road about a couple 
of hundred yards we passed Mr. Gillie Martin; there is 
only one road that leads off of the public road to Jim 
Davis’ house that any one can travel in a wagon or truck. 
We turned down that road, it is about two hundred yards 
from the public road to Jim Davis’ house.

Q. You all turned down that road, didn’t you? A. 
Yes, sir.

Q. After Jim Davis had told you all that you could 
not to come into his house? A. Yes, sir.

Q. And you drove down there with Mr. Scott on the 
truck? A. Yes, sir.

Q. And with the pistol in his pocket, didn’t you? A. 
Yes, sir.

Q. And with four good cartridges in it? Yes, sir.
Q. And Mr. Scott said that that was enough to bring 

how many back? A. Two or three.
Q. When you got down there close to Jim’s house, 

you turned that truck around, didn’t you? A. Yes, sir.
Q. And then headed it out towards the public road? 

A. Yes, sir.
Q. Why did you do that? A. That is just a habit 

I have.
Q. Who told you to do it? A. Nobody, that is a 

habit I have; I turned around to come out.
Q. And after you turned around, Mr. Scott jumped 

off that truck? A. Yes, sir.
Q. With that pistol still in his pocket? A. Yes, sir.
Q. With four cartridges in it? A. Yes, sir.
Q. He had not taken them out had he? A. I had 

not seen him.
Q. And started towards whose house? A. Jim 

Davis’.
Q. How far was he at that time, with that pistol in 

his pocket, with four cartridges in it, that he said was



SUPREME COURT 39

Appeal from Fairfield County
enough to bring back two or three, how far from Jim 
Davis’ house. A. About one hundred yards.

Q. Here you were down there between the house 
and the barn at that time? A. Yes, sir. 146

Q. Here is the house and here is the barn? A. Yes, 
sir.

Q. Where was the truck when Mr. Scott started to­
wards Jim’s house? A. About ten feet from the barn, 
towards the house.

Q. So, it was between the barn and the house? A.
Yes, sir.

Q. And that is where the truck was when he started? i46 
A. Yes, sir.

Q. He walked on and got to the corner of the fence, 
didn’t he? A. Yes, sir.

Q. And came right down from that truck, right down 
this way, here is where the fence begins up here at the 
corner, came right around the corner of that fence and 
down to that gate? A. Yes, sir.

Q. And started into the gate to the front door of Jim 
Davis’ dwelling house, didn’t he? A. Yes, sir.

Q. And at that time, he had the pistol in his pocket, 
didn’t he? A. With the pistol in his pocket.

Q. With the four cartridges? A. Yes, sir.
Q. Did Jim say anything? A. I didn’t hear anyone m 

say anything.
Q. You say he had both of his hands in his pockets?

A. Both hands in his front pockets.
Q. And his coat on? A. Coat on, he had on coat 

and sweater. The sweater touched him along the waist­
line ; his coat was not thrown back.

Q. And that is the way he started into Jim’s house?
A. Into the gate.

Q. And that gate is how many steps from Jim’s front 
door, tell the jury? A. The least I can get at it, is about 
eight steps.

Q. And as he was coming, you say, he had done step­
ped under the arch? A. Yes, sir.

Q. And the arch is right over the gate? A. Right 148 
over the gate.

Q. And had raised up? A. He never did raise up.
Q. He was raising up, you said he was shot in his



40 SUPREME COURT
The State vs. Jim Davis

right shoulder? A. In his left shoulder.
Q. In his left or right? A. In his left shoulder. I 

know he taken his left hand out and placed it across his
149 stomach. Jack took his pistol out of his pocket.

Q. What did he say to Jack? A. He said “ Shoot.”
Q. “ Shoot” , and that is when war did turn loose, isn’t 

it? A. I don’t know anything about war.
Q. How many shots did Jack fire into that house? A. 

Two.
Q. In that house there at that time was Jim Davis? 

A. Yes, sir.
160 Q. And Jim Davis’ children? A. Yes, sir.

Q. And Sarah was to be over there to go to George­
town with you, of course, wasn’t she? A. I don’t know 
anything about Georgetown.

Q. Jim told you all that he wasn’t going to let these 
girls go, didn’t he? A. That is what he told us when 
we went back the second time.

Q. He told you that he had rather follow them to the 
graveyard? A. Yes, sir.

Q. Than to see his girls living in a negro grade camp ? 
A. That is what he said.

Q. And despite that fact, and despite the fact that he 
wouldn’t allow you and Jack Jewett to go into his house, 
you all went back to the camp, and came back, you and

151 Jack together with Mr. Scott? A. Yes, sir; we came 
back together.

REDIRECT EXAMINATION BY MR. DOUGLAS:
We went down this road, turned around nearer the 

barn than the dwelling house; then Mr. Scott got out 
and went to the house.

RECROSS EXAMINATION BY MR. SOUTHARD:
Q. Willie, did you hear Jack tell Mr. Scott that Jim 

wouldn’t let you boys go into his house? A. Yes, sir.
Q. You heard him tell him that? A. Yes, sir.
Q. And that was when you all started? A. That 

was before we ever left camp.
Q. I say, after that is when you all started back to

152 his house? A. Yes, sir.
Q. Now, when he broke down the pistol and saw that 

there were four good cartridges in that 38 Special, and 
when he said, “that this is enough to bring two or three



SUPREME COURT 41
Appeal from Fairfield County

of them” , you all were talking about Sarah Davis, and 
Clara, weren’t you ? A. I wasn’t the one talking.

Q. I understand that. A. Mr. Scott was doing the 
talking.

Q. And the conversation was then about going up to 
get those girls? A. That is what the conversation was 
about.

J. L. BRICE, a witness for The State, Examination by 
Mr. Douglas: I am a surveyor; I made a plat of where
the homicide occurred; this is that plat; the barn is

marked “ Barn” , the lot is marked “ Lot” , here is the 
house, and the fence. It is sixteen feet and five inches 
from the gate to the front door of the house; there is an



42 SUPREME COURT
The State vs. Jim Davis

arch over the gate with some vines on it ; there is a path 
from the front gate to the public road, runs straight, it is 
326 feet and six inches, there is another path which goes

167 toward Mr. Gillie Martin’s; the barn is 118 feet and 6 
inches from the front gate, and it is not a straight line, 
but follows a path, the path comes up from the barn, 
along the front fence to the gate; the dwelling house has 
a hall about 16 feet long and 8 feet wide, one room on 
either side of that hall in front. That place is in Fairfield 
County.

CROSS-EXAMINATION BY MR. SOUTHARD:
168 Everything shown on the plat is within six hundred 

feet of the public road; it is five hundred thirty seven 
feet from the barn, following the road to the public road; 
it is 118 feet from the barn to the front gate; I have 
shown his outhouse and his chicken house, and his well, 
it is 483 feet from the front gate to the public road lead­
ing down toward Gillie Martin’s house,

STATE RESTS. JURY RETIRES.
MOTION FOR DIRECTION OF VERDICT FOR DE­

FENDANT.
MR. SOUTHARD: I want to ask the Court to direct 

a verdict of NOT GUILTY in this case, because the only 
reasonable inference to be drawn from the testimony of 
this case, is that the killing was done by the defendant in

159 defense of himself and of the members of his family.
And, further, that the only, another ground, that the 

only reasonable inference to be drawn from the testimony 
in this case is, that the killing was done by the defendant 
in defense of his castle, place of habitation.

That the only testimony in the case shows that the de­
ceased in this case occupied the position of a trespasser; 
that he was attempting to go into the dwelling house of 
this man after he had notice not to go there; that this no­
tice was given to Jack Jewett and to Willie Worthy, that 
they could not come into the dwelling house of the de­
fendant; and that the only testimony in the case shows 
that Mr. Scott was acting in concert with Willie Worthy

160 and with Jack Jewett, after they had been told not to 
come into this man’s dwelling house, and thaf he was go­
ing in there for the purpose of taking out of this man’s 
dwelling house two of his children.



SUPREME COURT 43

Appeal from Fairfield County
There is absolutely no evidence here to submit this case 

to a jury on; there is no debatable testimony in this case 
to this point, the State hasn’t proven a single element of 
murder; but, on the contrary, from the State’s own wit- 161 
nesses comes a perfect defense of self-defense, and all 
of the elements of self-defense; and a perfect defense of 
the law of the CASTLE, and that, therefore, he is en­
titled by the COURT to instruct the jury that they must 
write a verdict of NOT GUILTY.

COURT: I don’t think that I can instruct the jury
that, because, suppose that man was going up there to 
try to persuade him and not to use force at all. 162
MR. SOUTHARD: The reasonable, and the only reas­

onable inference, Your Honor, does not lead to that.
COURT: To your mind it might not; or might; but

to my mind it might not, or might. I don’t think the de­
fense is made out; I don’t see how it can be. The jury 
will have to be.

MR. SOUTHARD: I am relying on the law as laid
down in the case of The State vs. Bradley, 120 Southeast­
ern 242; written by Associate Justice Cothran.

COURT: I have read that; but I don’t think the facts
in this case justify,—

MR. SOUTHARD: Then, if your Honor overrules
that motion, then I move that you strike from this indict­
ment the element of Murder; there is absolutely no evi- 168 
dence here to submit to the jury on the element of mur­
der; and we would be required to answer the charge of 
manslaughter.

COURT: At this stage of the case, I couldn’t settle
that, I will have to have all the testimony.

DEFENDANT’S CASE.
JOHN W. LYLES, a witness for the Defense, being 

sworn, Examination by MR. SOUTHARD:
I am Clerk of Court for Fairfield County, have been 

for about twenty five years; I am eighty one years of 
age. It is my duty to keep a record of all commissions, 
orders, and judgments of the Court. On the 9th day of 
November 1925, J. AUSTIN SCOTT was not an officer ig4 
of FAIRFIELD COUNTY.

There was filed with me an order for bail in this case, 
the case of THE STATE VS. JIM DAVIS, the order was



44 SUPREME COURT
The State vs. Jim Davis

signed by Acting Chief Justice R. C. WATTS, admitting 
the defendant to bail in the sum of THREE THOUSAND 
DOLLARS.

166 GILLIE E. MARTIN, a witness for DEFENSE, 
sworn, Examination by Mr. Southard:

I live in Fairfield County, was born and raised in this 
County, and have lived here all of my life ; I know where 
Jim Davis lived on November 9th, 1925, he lived between 
me and my brother-in-law, Mr. D. R. Martin; I remember 
the occurrence, the day and time.

Q. Now, without stating what the message was, state
166 whether or not early on that morning before breakfast, 

you received a message from Jim Davis? A. Yes, sir.
Q. In consequence of the message you received from 

Jim Davis, tell the jury what message you sent to him.
SOLICITOR: I don’t think that is competent; the 

message that this man sent to the defendant is hardly 
competent.

COURT: I sustain the objection.
Q. After breakfast, Mr. Martin, what time did you 

eat breakfast that morning, do you remember? A. Well, 
a little after sunup.

Q. After breakfast, Mr. Martin, which direction did 
you go from your home? A. I went up the road.

167 N°w> ^ere a Plat> come up here and explain it 
to the jury. This is the direction of where Dave Martin 
lives; and this is the direction of where you live; this is 
the Winnsboro road; this is Jim Davis’ house,— Mr. Mar­
tin, you said you went up the road? A. Yes, sir.

Q. You mean you came down this way, going toward 
Dave Martin’s? A. Yes, sir.

Q. Where were you going to? A. Going over to the 
camp.

Q. As you got out into the public road, state whether 
or not you could see Jim Davis’ house and yard? A. Yes, 
sir; I could see very plainly.

Q. You could see it very plainly, what did you see 
there at Jim Davis’ house, Mr. Martin? A. I saw a

168 crowd in the yard, and saw a truck drive off.
Q. You saw several in the yard, and a truck drive off? 

A. Well, around the yard.
Q. Which road was that truck on, where was it? A.



SUPREME COURT 45
Appeal from Fairfield County

Well the road that lead out from his house, going to­
wards,—

Q. Well, now was it on this road here, this is the road 
that leads up into the public road? A. Yes, sir; it was 169 
on that road.

Q. Where did you see that truck Mr. Martin ? A. I 
saw it when it drove off from his house, and then after 
it got into the road.

Q. Did you notice who was in the truck? A. I 
couldn’t tell who was on it.

Q. How many? A. I didn’t see but two, at that 
time. - 170

Q. Mr. Martin, that was about what time in the morn­
ing? A. I imagine about seven-thirty or eight o’clock 
in the morning as near as I can guess it.

Q. Now which direction did that truck go, Mr. Mar­
tin? A. It went around toward Dave Martin’s.

Q. The camp was located down below Dave Martin’s 
house? A. Yes, sir.

Q. Do you know this crooked path that leads from 
Jim Davis’ house down to your house? A. Yes, sir.

Q. Do you know the path that leads from Jim Davis’ 
house straight out to the public road? A. Yes, sir.

Q. Now which path was it that you were approach­
ing when you were hailed by Jim Davis, the straight 
path? A. From his house. 171

Q. Straight from his house. When was the first time 
that you saw Jim Davis to recognize him? A. Well, 
that was about one hundred yards before I got to the 
path.

Q. Where was Jim at that time? A. I seen him 
leave the house, coming toward the road.

Q. When you reached the path, you met Jim Davis 
there? A. Well, I stopped in the road.

Q. Where was Jim Davis at that time? A. He was 
up on the bank up there a good piece from the road.

Q. Did he speak to you? A. Yes, sir.
Q. What did he say?
THE SOLICITOR: Object, that is not competent.
COURT: That is part of the res gestae on what

ground?
MR. SOUTHARD: To show the mental attitude of



46 SUPREME COURT
The State vs. Jim Davis

the defendant.
COURT: That will be self serving.
SOLICITOR: Self-serving, and hearsay, both.
MR. SOUTHARD: I can’t show the mental attitude

of the defendant?
Q. I will ask you this question, how long was it after 

that until you saw this truck come back with Jack Jew­
ett, and Will Worthy, and Mr. Austin Scott on it? A. 
I had left there and gone up the road a good long ways.

Q. How many minutes? A. I judge, I had walk­
ed a quarter of a mile.

MR. SOUTHARD: I submit that it is competent.
COURT: It is not competent.
MR. SOUTHARD: Then I will ask the jury to be ex­

cluded until I can put the testimony in the record.
COURT: No use to exclude the jury; put it in the

record.
Q. All right, Mr. Martin, at the time that you met 

Jim Davis, what was it he said to you?
SOLICITOR: I object.

MR. SOUTHARD: I want to get it in the record,
I want him to answer in the record.

SOLICITOR: It is clearly hearsay.
COURT: It is not competent. I don’t know of any

rule by which you can get it in the record. I rule that 
you can ask the question. If it is a part of the res gestae, 
it is admissible.

MR. SOUTHARD: We contend that it is competent
on the further ground that it shows the mental attitude 
of the defendant, his mental condition just a few minutes 
before the homicide. It shows that it is not self-serving. I 
intend to show that he had been threatened. It is for the 
further purpose of contradicting the witness Jack Jewett, 
that a foundation was laid for, that this man at that time 
told. Mr. Martin,—

COURT: I can’t admit it.
Q. Mr. Martin, I will ask you this question, if at that 

time, state whether or not at that time, Jim Davis asked 
you to come up to his house?

SOLICITOR: Object. COURT: I sustain objection.
Q. Then I will ask you this question, state whether or 

not Jim Davis told you at that instant that he was having



SUPREME COURT 47

Appeal from Fairfield County

trouble,—
SOLICITOR: State objects to question.
Q. That he was having trouble with those boys about 

taking off his girls, and that his girls said that they didn’t 177 
want to go, and that those boys had told him that they 
were going back, and come back and raise hell or have a 
damn war one?

SOLICITOR: State objects to the question, Your
Honor.

COURT: Sustained on two grounds, that it is lead­
ing,—

MR. SOUTHARD: I asked “ State whether or not” . 178
Q. I will ask you also, if you didn’t at that time state 

to Jim that you couldn’t come up there at that mo­
ment, for the reason that you were in a hurry, and that 
you yourself were going down to the camp?

SOLICITOR: State objects on the ground that it is
hearsay; it is incompetent, not part of the res gestae.

COURT: I don’t think that that is relevant to the
issue.

MR. SOUTHARD: I am offering it to show the men­
tal attitude of the defendant, just a moment or two be­
fore this homicide.

COURT: I can’t,—
Q. State whether or not you asked Jim Davis if he 

had sent for Mr. Dave Martin? 179
SOLICITOR: I object to the question; and further­

more, we have allowed Counsel considerable latitude in 
asking these questions. We don’t think that he ought to 
be permitted to put practically his whole case before the 
jury in the form of irrelevant questions.

COURT: I think he has the right to put the question
to the witness.

SOLICITOR: On the ground that it is mere hearsay,
irrelevant; and it is a self-serving declaration; it is a 
conversation with the defendant.

COURT: I sustain it.
Q. Then, I will ask you this question, Mr. Martin, 

state whether or not at that instant he told you he had iso 
sent for Mr. Dave Martin, and that you told him at that 
time, that you were sure that Mr. Dave Martin would 
stop them, and wouldn’t let them come back to his house?



48 SUPREME COURT
The State vs. Jim Davis

SOLICITOR: State objects, on the same ground.
COURT: Objection sustained.
JIM DAVIS, the defendant being duly sworn, Exami-

181 nation by Mr. Southard:
I am the man on trial; on Nocember 9th, last year I 

lived with Mr. D. R. Martin here in Fairfield County; I 
was born in Fairfield County on Captain John Lyles’ 
father’s place; I am fifty-one years old; and have never 
been in trouble before.

On a Sunday in the latter part of October, 1925, Jack 
Jewett and some other boys took my girls oif. I didn’t

182 know that Sarah was going with him at all. Sarah is 
fourteen years old last June; Clara was fifteen years old 
when this happened. When I found out that they had 
took my girls, I had a warrant swore out for them; Jack 
Jewett, Walter Owens, and Lieut. Greer took my girls 
and Sarah Rabb off; Clara and Willie Worthy come back 
to my home from Greenwood,— I asked them were they 
married; they said, “yes” . I asked them where was their 
marriage license; they said they didn’t have it, the boss 
man had it at the camp; I told them that I wanted to 
see it, to see if they were married; I knew that my girls 
were ruined; and I hoped that they were married; they 
never did show me their marriage license; I let them 
stay there, and didn’t bother them at all.

Q. Now, on Sunday night, before the killing the next 
morning, who came to your house? A. Bob Duffie and 
his wife.

Q. What was it that Bob McDuffie told you that night?
SOLICITOR: The State objects.
MR. SOUTHARD: It is offered for the purpose of

showing the state of mind that that message placed the 
defendant in, Your Honor, and in explanation of his acts 
and conduct, and it is thoroughly competent.

COURT: I believe that it is competent right now, be­
cause, Mr. Solicitor, the defendant claims that that is the 
grounds of his action, I think he can show whatever was 
on his mind. I think that is competent what the parties 

is* said to him, when it is in reference to the matter in is­
sue, when it touches the matter in issue.

A. He told me he was over to the camp that day, and 
Jack Jewett asked Mr. Austin Scott if he was going to



SUPREME COURT 49

Appeal from Fairfield County-
do what he had asked him to do, Monday morning, and 
he said Mr. Austin Scott told him “yes” , and he said,
“well, we will be over there to my house Monday morn­
ing and raise hell or have a damn war” .

Q. Was that the first information that you had of any 
impending trouble at all? A. Yes, sir.

Q. With either Jack Jewett or Mr. Scott or anybody 
else? A. Yes, sir.

Q. Now, after that, the next morning, in consequence 
of that information that had been brought to you on 
Sunday night, state whether or not you sent early in the 
morning for Mr. Gillie Martin to come to your house? m 
A. Yes, sir.

Q. Did Mr. Gillie come to your house at that time?
A. No, sir; he did not.

Q. Before you saw Mr. Gillie Martin, who did come 
to your house? A. Bob Dodson and Nancy Rabb.

Q. Is Bob Dodson a brother-in-law to Sarah Rabb?
A. Yes, sir.

Q. Did Sarah Rabb come to your house, early that 
morning, too? A. Yes, sir.

Q. Was that before the truck came up there the first 
time or not? A. It was before the truck come the first 
time.

Q. So, did Bob Dodson, or Sarah come first? A. Sa- lg7 
rah come first. .

Q. In consequence of your sending, did Bob Dodson 
come? A. Yes, sir.

Q. Did he allow Sarah Rabb to go off with the ne­
groes? A. No, sir.

Q. After that who came to your house in a truck ? A.
Jack Jewett and Willie Worthy.

Q. Now, it was the night before you had received this 
message? A. Yes, sir.

Q. Before Jack and Willie went off that morning did 
you have a conversation with them about these girls go­
ing? A. Yes, sir; I talked with them.

Q. What did you tell Jack and Willie about permit­
ting your girls to go? A. Well, I told them I hated for 188 
them to take them. I had not had any settlement, and 
had not gotten them up any winter clothes, and the girls 
said that they didn’t want to go, and for them to go on,



50 SUPREME COURT
The State vs. Jim Davis

and they could go on and work on the road, and come back 
and forwards until they got their little debts straight.

Q. Now, you told them that you didn’t want the girls
189 to go? A. Yes, sir.

Q. And that the girls were not going to go ? A. Yes, 
sir.

Q. At that time what did Jack and Willie state to you? 
A. Jack and Will, they said to me, “ Then they will be 
back over here after a little and talk with me some more 
about the girls.”

Q. How long were they gone? A. They were gone
190 about a half-hour, I reckon.

Q. Then did they come back, Jack and Will? A. Yes, 
sir.

Q. Anybody come with them ? A. Nobody but them 
two.

Q. When they drove up to your house what did you 
say to them ? A. I told them they had been treating me 
mighty trifling, they said they were married and had nev­
er showed me any marriage license, and the way they 
were trying to run over me, I was tired of it; and the 
girls told me not to let them come in the house and take 
them out; and I told them they could talk to them out of 
the window.

191 Q- At this time were there blinds to the windows or 
board shutters? A. There were boards,, the blinds have 
been put on since.

Q. State whether or not this is the window you al­
lowed those two boys to come up to and talk to the girls 
(end window) ? A. Yes, sir.

Q. Where were the girls? A. Girls inside of the 
house and they came to that window and talked to the 
boys.

Q. Inside of that house at that time how many chil­
dren were there that were yours? A. Seven.

Q. How old was the oldest? A. Oldest 17, youngest 
going on 4.

Q. Was your wife in there? A. Yes, sir.
192 Q. How long did they stand there at the window and 

talk to the girls? A. About six or seven minutes.
Q. As Jack and Will turned to go away from that 

window, what was it Jack said to Will? A. Jack told



SUPREME COURT 51
Appeal from Fairfield County

Will he was going back and get Mr. Austin Scott; that 
he would come over there and get them out, or have a war 
or raise hell.

Q. What did Jack say to Will as to taking Clara out? 193 

A. He told Will if it was him he would take her out of 
there or leave her laying outside there on the gound.

Q. When they said that, when you heard Jack say they 
were going back and get Mr. Austin Scott and come back 
and take those girls out or raise hell or have a damn war 
one, tell the jury what you told them. A. I told him 
not to come back down there no more because I didn’t 
want him back there; I didn’t want no trouble out of him, 
and not to come back, because if he come back to raise war 
or anything of the kind, why I would try to be in the 
raising of the war with them. That is what I told him.

Q. At that time who did you see coming down the 
public road from up towards Mr. Gillie Martin’s house?
A. I saw Mr. Gillie.

Q. Before you went out to see Mr. Gillie, whom did 
you send to Mr. Dave Martin’s? A. I sent Son, my boy 
Anthony, and told my boy,—

SOLICITOR: Object to what he told his boy, to tell
Mr. Martin.

COURT: There may be some question as to that.
Q. At any rate you sent this boy of yours down to 

Mr. Dave Martin’s house? A. Yes, sir. 196
Q. That is when these boys drove in in the truck the 

first time? A. Yes, sir.
Q. Then when you saw Mr. Gillie Martin coming down 

the public road, what did you do, after you sent your boy 
to Mr. Dave Martin’s? A. Went out to the road where 
Mr. Gillie Martin was.

Q. At that time were you excited, Jim? A. Oh, yes. 
sir; I was crazed mighty near to death, because I didn’t 
want any trouble with them.

Q. State Jim, at that time, whether or not you told Mr.
Gillie Martin that you were having trouble with those 
boys about taking your girls off?

SOLICITOR: Object. COURT: Don’t answer. i96
Q. State whether or not you asked Mr. Gillie Martin, 

you told him that those boys had been there? A. Yes, sir.
Q. And that they had told you they were going for



52 SUPREME COURT
The State vs. Jim Davis

Mr. Austin Scott and that they were coming back, and 
that when they come back, that they were going to take 
those girls out of there or raise hell or have a damn war 
one, and that you wanted Mr. Gillie Martin to come up to 
your house and plead with Mr. Austin Scott not to come 
to your house?

SOLICITOR: Object. COURT: Don’t answer.
Q. State whether or not Mr. Martin had asked you if 

you had sent for Mr. Dave Martin, the man you lived 
with, and you told him you had, and state whether or not 
Mr. Gillie Martin told you that he was going to the camp; 
that he was going down there to see Mr. Scott himself, 
that some of the negroes down there at the camp owed 
him some money? A. That is right.

Q. And that Mr. Scott, he understood, was going to 
Georgetown with those negroes, and that he wanted to 
have him to collect what those negroes owed him; and 
that he would stop Mr. Scott and those boys from coming 
to your house?

SOLICITOR: Object. COURT: Sustained.
Q. State whether or not Mr. Gillie Martin further told 

you at that time that if you had sent for Mr. Dave Mar­
tin, that he knew Mr. Dave Martin would stop Mr. Scott, 
and that you wouldn’t have any trouble,—

SOLICITOR: State objects; hearsay and opinion.
COURT: Yes, sir.
MR. SOUTHARD: That is for the purpose of detailing 

a conversation to show his mental attitude at that time.
Q. How long was the truck gone? A. I think about 

ten or fifteen minutes at the outside.
Q. Did you want your girls to go to Georgetown, Jim? 

A. No, sir; I didn’t.
Q. What did you tell those negroes about your girls 

living in a negro camp? A. I told them boys I rather 
see them dead and gone to the graveyard than to go to a 
place like a camp to live.

Q. Did you ever think, Jim, that your girls would 
ever come to the point of living where they are living? 
A. No, sir.

Q. You said they were gone ten or fifteen minutes, tell 
the jury, what happened then? A. Well, when they 
come back they come back with Mr. Scott; he come back



SUPREME COURT 53
Appeal from Fairfield County

with them.
Q. Left two and come back three, and they were back 

there, you say, inside of ten or fifteen minutes after they 
told you that they were coming back to raise hell or have 201 
a damn war, with Mr. Scott? A. Yes, sir.

Q. How long after you had the conversation with Mr.
Gillie Martin? A. It wasn’t very long. They come up 
the public road, and turned into the road leading down 
to my house, and stopped the truck between my house 
and the barn, with the truck headed back toward the pub­
lic road; and Mr. Scott and Willie and Jack jumped off of 
the truck. 202

Q. How far were they at that time from the fence 
around your house? A. Just about ten or twelve yards.

Q. Who started towards your house? A. All three 
of them started.

Q. State to the jury what you said, and when you 
said that? A. I told them to go back and don’t come 
in my house. I told Jack, I told him and Willie once be­
fore not to come back, and when I said that they made a 
stop.

Q. Who kept coming? A. Mr. Scott; I told him 
three times more to stay back.

Q. How was he coming? A. In a run.
Q. Where were his hands ? A. In his front breeches 

pockets.
Q. Where was Mr. Scott the first time you told him ?

A. The first time I told him was when he just got off the 
truck.

Q. Where were you? A. Standing in my door.
Q. In your front door? A. Yes, sir; front door.
Q. Now, when Mr. Scott kept coming what next did 

you say to him? A. I told him to go back.
Q. Tell the jury what you said, as well as you remem­

ber. A. I told him to go back, “don’t come into my 
house.”

Q. Did Mr. Scott say a word? A. No, sir; he 
didn’t say anything to me at all, no sir.

Q. Did Mr. Scott say a word, not a thing? A. No, 204 
sir, when he got to the gate I told him “don’t come inside 
my yard.”

Q. What did he do? A. He pulled the gate open



54 SUPREME COURT
The State vs. Jim Davis

with his left hand and come on in; and just as he got in­
side I saw his pistol in his pocket, handle of it sticking 
out.

205 Q. Which pocket did he have it in? A. In his right 
front breeches pocket.

Q. Where was he then ? A. Just as he opened the gate 
with his left hand, he sorter started out his pocket with 
his pistol in his right hand, just as he got it out, and got 
inside the little arch here, that is the time I fired.

Q. What did you aim at, Jim? A. Well, I was aim­
ing at his arm, the one what I was thinking he was going

... to use that pistol.
*  06  a

Q. His arm? A. Yes, sir.
Q. You try to shoot him on the right side or about his 

head? A. No, sir; I was trying to stop his arm, stop 
that pistol.

Q. Did you want to kill Mr. Scott or harm him? A. 
No, sir; I didn’t but I was trying to keep him from shoot­
ing me.

Q. At that time, Jim, were you afraid of Mr. Scott? 
A. Oh, yes, sir; I was scared. If I had not been afraid 
I would not have done what I did.

Q. At that time Jim, did you want Mr. Scott to come 
in your house and take your girls out? A. No, sir; I 
didn’t want any trouble with him at all; I wasn’t want-

207 ing him in, I didn’t want him down there.
Q. Were you afraid for him to come in your home 

where your wife and children were? A. Yes, sir; I was 
afraid; I was looking for him to come right up and insult 
all my people.

Q. Had you asked Mr. Scott to come to your house? 
A. No, sir.

Q. Had you asked Jack Jewett and Willie Worthy to 
come to your house on that day? A. No, sir.

Q. Then what happened? A. He turned around and 
give Jack his pistol and told him to kill the damn nigger.

Q. Then, what happened? A. Jack fired at me 
twice.

208 Q. Did he shoot in your house? A. Yes, sir.
Q. Is this the shutter that he hit with a bullet in your 

house? A. It hit just above my head, and stuff burned 
my face, and then it went inside of the house; then I peep-



SUPREME COURT 55
Appeal from Fairfield County

ed out the door at that time, trying to see where Jack was, 
he was standing right behind and looking over the truck 
body, with the pistol laying upon the body aiming at me;
I peeped out the next time, Jack made another fire; the 209 
next time I peeped out, Jack had his foot down, and I 
stepped down on the rock, and just as he made to get off 
he fired again; I jumped out of the door then and said 
he was going to kill me or me him; I got out of the door 
then, I made to cock my gun and my hand slipped off my 
hammer and it went off right down at my feet, and that 
time Jack and Will made out and run. That is the three 
shots I fired. Mr. Scott had then gone around out of my 2io 
sight, the house was then between me and him; I saw him 
after that, and got two quilts for Mr. Martin to lay him 
down on, and to take him home with; I stayed there until 
Mr. Dave Martin and Mr. Gillie Martin came, then when 
they left with Mr. Scott I left; I surrendered to Mr. John 
Stone about one week after that, and the Sheriff took me 
to Columbia, where they kept me until February 11. I did 
see Sheriff McFie and Mr. Lindler in Columbia; I might 
have told them that neither me or Mr. Scott didn’t say a 
word; I was awfully afraid at that time, I didn’t know 
what they were going to do with me, but whether I told 
them that or not, I did tell Mr. Scott not to come in my 
yard and house.

Q. Is there anything else? A. Well, Boss, that is 
about all, unless you want me to state some reason about 
the girls going off. The way it is with me, I had been 
raising my girls, I was raising them like Cap’t Lyles had 
raised me; after they got in a place like that, it just nat­
urally had me all tore to pieces, and I didn’t hardly know 
my right mind then no way, from the time they run off 
until the time I got into trouble; the reason I didn’t want 
them to go over there to the camp, I saw the conditions 
and things over there, and I just didn’t want them in 
such a place like that. The boys over there on Sunday, 
instead of going to church and preaching like we did, 
they gambled all day, and swear and cuss; and they 
wouldn’t have a change of clothes, and borrow one anoth- 212 
er’s clothes, going backward and forwards.

CROSS-EXAMINATION BY THE SOLICITOR:
I have been farming all of my life. I can’t tell you



56 SUPREME COURT
The State vs. Jim Davis

where I lived in 1911, when Sarah was born, I think on 
Mr. Charlie Crowder’s place; I know one of the girls is 
14 and the other is 15 years old.

Q. When they went off to Greenwood and got mar­
ried and came back home,—

MR. SOUTHARD: Now, the same objection as to
their marriage.

COURT: That is a collateral matter.
Q. When they came back from Greenwood, they came 

to your house, didn’t they? A. Yes, sir.
Q. They said they were married, didn’t they? A. 

Yes, sir.
Q. And you let them stay there in your house as man 

and wife for about a week? A. Yes, sir.
Q. You raised no objection to that, you didn’t say 

anything about them being fourteen and fifteen years old ? 
A. Oh, yes, sir; when I went to swear out a warrant I 
told the Magistrate they were not of age.

Q. Mr. Blain? A. Yes, sir.
Q. But when they came back you let them live as man 

and wife under your roof? A. Yes, sir; I knew no use 
to try to keep them, they already told me what they done, 
and two stayed with them and drew pistols on them, and 
I know no use to keep them from staying with them; 
there was no use.

Q. In spite of the fact that one of those negroes had 
drawn a pistol on her in order to have intercourse with 
her, you let him stay under your roof? A. Yes, sir.

Q. You didn’t object to it at all? A. No, sir.
Q. They come over there to spend the night and go 

back to camp the next day? A. Yes, sir.
Q. Now Jim, you say Robt. McDuffie came over there 

on the night before? A. Yes, sir.
A. And you talked about this matter with him? A. 

He brought it up to me; he was telling me about it; I 
didn’t know anything about it.

Q. And he told you to cool off? A. No, sir; there 
was no cool off in it.

Q. He didn’t tell you not to be so wrought up about it? 
A. No, sir; he told me if it was his girls, he wouldn’t 
let them boys stay in his house nary night.

Q. He would have objected at the very beginning, he



SUPREME COURT 57
Appeal from Fairfield County

said? A. Yes, sir, but I didn’t want no trouble with 
them, and that is why I didn’t bother with them.

Q. Now, Jim, your wife was there with you all the 
time, she was there when the boys got up and went to the 217 
camp? A. Yes, sir.

Q. She was around the house and saw and heard what 
went on? A. No, sir; she was in the house.

Q. She was there when the boys came back the sec­
ond time; and when they came back with Mr. Scott? A.
Yes, sir.

Q. Where was she standing at the time? A. She 
was standing in the hall way betwixt the doors.

Q. She could hear and see everything? A. Oh, yes, 
sir.

Q. Now when did Dodson come up? A. He come up 
that Monday morning.

Q. Where did he come from? A. From home, I 
suppose.

Q. Did Dodson have a pistol? A. Yes, sir.
Q. Come up to your house with a pistol? A. Yes, sir.
Q. What did he have a pistol for? A. To protect 

his sister.
Q. So you sent for Dodson ? A. Yes, sir; I sent for 

him.
Q. And he came as a result of your message, to your 

house, with a pistol ? A. To see after his sister, not me. 218
Q. She didn’t live in your house? A. No, sir; but 

she was up there and was intending to go oif in that 
truck; and he come to keep her from going.

Q. But she was up at your house? A. Yes, sir.
Q. And as a result of that message, Dodson came to 

your house with a pistol? A. Yes, sir, with a pistol; I 
don’t know what kind.

Q. What sort of message you send? A. I told him 
to come up there; his sister was aiming to go off with 
the camp people, and he had better come and see about 
keeping her from going.

Q. And come prepared? A. No, sir; just come.
Q. You testified just now that you fired just one shot 220 

at Mr. Scott, the first shot that hit him ? A. Yes, sir.
Q. The second shot you fired at who ? A. Jack.
Q. When he was way over about the truck? A. Yes, sir.



58 SUPREME COURT
The State vs. Jim Davis

sir.
Q. And almost immediately after that you fired the 

third time? A. Yes, sir.
221 Q. And you fired with what? A. That gun.

Q. How many times does it shoot? A. It has got 
two barrels.

Q. It shoots twice ? A. Yes, sir.
Q. Where did you have that third shell? A. In my 

pocket.
Q. You were prepared for it? A. Oh, yes, sir.
Q. When did you get that third shell, all these shells ?

222 A. I got it when I got the gun.
Where did you get the gun ? A. I got the gun out of 

my house before the boys ever come down there the first 
time, and had it in my hand.

Q. Did you get it from your house? A. Yes, sir.
Q. Didn’t you send down to Manuel Suber’s house for 

a gun? A. I did.
Q. When did you send for it ? A. That same morn­

ing.
Q. So, you had in your house at that time, two shot 

guns and a pistol, all those things? A. Yes, sir.
Q. Who sent for the gun? A. Me.
Q. Who you send by? A. By my boy.
Q. You had a regular strong place up there? A. I 

knowed there was three of them, and I didn’t know what 
they were coming back with, and I was trying to get 
myself in shape; I didn’t know what they were coming 
back for.

Q. Where were Clara and Sarah at the time of the 
shooting? A. They were in the house.

Q. As I understand it, to get the order of this thing 
right, Jim, Dodson came up there first with the pistol? 
A. Yes, sir.

Q. You sent for the gun after Dodson came? A. 
No, sir; before Dodson came.

Q. Before he got there, you were going to have two 
guns? A. Yes, sir.

224 Q. Now, Jim, when the truck drove up there who was 
on it? A. Jack Jewett, Will Worthy and Mr. Scott.

Q. On which side of the truck did Mr. Scott get off? 
A. On the right side after they turned around.



SUPREME COURT 59

Appeal from Fairfield County
Q. You paid particular attention to it turning around?

A. I was standing in the door looking at it.
Q. What made you notice it? A. Because I was 

afraid of Mr. Scott. 225
Q. What happened then? A. He got off the truck, 

and him and Will and all, and started to my house, and I 
halted them.

Q. You testified just now you told them first to stop 
when they were at the truck, that right? A. Yes, sir.

Q. And the truck was away out at the barn ? A. That 
wasn’t very far.

Q. These other witnesses say ten feet from the barn, 220 
it farther than that? A. No, sir.

Q. And you hollered loud enough for them to hear?
A. Oh, yes, they heard me all right.

Q. And Willie and Jack could have heard you if you 
said anything? A. And did hear me.

Q. They said they didn’t. A. They heard me, be­
cause if they had not heard me they would not have stop­
ped.

Q. And Mr. Scott came on in, he got right to the gate?
A. Yes, sir.

Q. Where did you say his pistol was? A. In his 
right front pants pocket.

Q. And you saw it there? A. Yes, sir; saw it; yes,
227sir.

Q. Did he ever change that pistol after you shot? A.
I seen him when he handed it to Jack.

Q. How he give it? A. Out of his front breeches
pocket.

Q. And where was he then? A. About the truck.
Q. He had moved from the gate to the truck, before he 

pulled the pistol out? A. He had it when I saw it, he 
had just pulled it out.

Q. Had it out of his pocket when you shot? A. Yes, 
sir.

Q. And he hung onto it with his right arm? A. Yes, 
sir; and handed it to Jack, and told Jack to “ Kill him.”

Q. With that paralyzed arm he held on to the pistol; && 
he raised that paralyzed arm and gave it to Jack? A.
He didn’t have to raise it.

Q. You watched him? A. Yes, sir.



60 SUPREME COURT
The State vs. Jim Davis

Q. And handed it to Jack, and kept it in his hand while 
he was being carried all that distance, you want the jury 
to believe that? A. That is the truth.

Q. How do you account, Jim for the fact you stated 
just now, of when you fired the second time with the 
breechloader, Jack was behind the truck, he had put Mr. 
Scott down, how then do you account for some of those 
shot hitting Mr. Scott? A. Didn’t none of them, when 
the second shot was made, Mr. Scott was nowhere about. 
Jack made two shots at me after he got the pistol from 
Mr. Scott, and then the fourth shot come in, that is the 
time I shot Jack, I made the first shot, Jack made the two 
next, and I made the fourth and fifth.

Q. Mr. Scott wasn’t in Jack’s arm when you fired the 
second shot? A. No, sir; he wasn’t.

Q. You deny that? A. No, sir; he was not.
Q. You testified just now, Jim, I wrote it down, I 

want to get it right, that you were shooting at Mr. Scott’s 
right arm? A. Yes, sir.

Q. And was only trying to keep him from shooting 
you, that right? A. Yes, sir.

Q. That is the only reason for shooting? A. And 
keep him out of my house.

Q. You said you were shooting at his arm? A. Yes, sir.
Q. And just trying to keep him from shooting you? 

A. Yes, sir, and keep him from coming into my house.
Q. He had not said anything about coming into your 

house? A. He was coming in there as straight as he 
could come; he kept coming; he had not stopped at all.

Q. Jim, haven’t white people been coming to your 
house all your life? A. Folks, whenever they come up 
and drive up, they always halt and call or something.

Q. Don’t ever come to your door and knock, you 
never had a white man to come to see you about a mule 
or plowing or anything, come to your door and knock? 
A. Not as long as I had a yard around my house, they 
come and holler; Boss, they had no right to be scared of 
me because I had never been in nothing.

Q. Did you never in all your experience, have a white 
man come up to your house and knock on the door? A. 
I don’t recollect it.

Q. And Mr. Scott had not said a word to you? A. No, sir.



SUPREME COURT 61

Appeal from Fairfield County
Q. Didn’t say what he was going to do or anything?

A. No, sir.
Q. And you just shot right out at the gate? A. Right 

beside the gate. 233
Q. Well, you said just now, Jim, that you had been 

wrought up ever since October 26 or 27, when these girls 
left there? A. Yes, sir; I was scared, and like I didn’t 
have my right mind.

Q. And you were wrought up, excited, weren’t you?
A. I was afraid, yes, sir; scared.

GILLIE MARTIN, a witness for the defense, recalled; 
Examination by Mr. Southard: 234

Q. Mr. Martin, I don’t think I asked you, after this 
conversation I asked you about, as occurring between you 
and Jim Davis, at the path in front of his house, in which 
direction did you go? A. Straight on up the road.

Q. Towards whose house? A. Dave Martin’s house.
Q. As you got up to the turn, you make a turn this 

way, and down the hill, and turn that way, what did you 
see? A. I saw a truck standing in front of Dave Mar­
tin’s house; at that time, I could not tell who was on that 
truck; I was going toward the camp.

Q. What did you see the truck do? A. Well, I walked 
a few steps and it started toward me, and I met it.

Q. About where did you meet it, the truck? A.
Well, there is a little bridge this side of Dave’s house; I 235 
don’t know exactly the distance; but I met it right about 
that bridge

Q. Who was on the truck at that time? A. Well, 
there was two negroes and Mr. Scott. I met the truck be­
fore it turned off to Jim Davis’ house.

Q. Which way did you continue going? A. Walked 
on a little piece further and I met Dave Martin.

Q. Which way was Dave Martin going ? A. He was 
going toward Jim Davis’ house, behind the truck. The 
truck that Mr. Austin Scott was on.

Q. When you met Dave Martin, what did you do? A.
I turned, and Dave Martin and me came on back.

Q. Where were you all headed for? A. Going to 236 
Jim Davis’ house.

Q. After you got up the road a short distance tell the 
jury what you heard? A. Well, about the time we got



62 SUPREME COURT
The State vs. Jim Davis

across the bridge, I heard a shot.
Q. You and Dave Martin together, going to Jim Da­

vis’ house? A. Yes, sir.
Q. Where did the shot come from? A. From Jim 

Davis’ house. We taken a few steps more, then there was 
one or two more shots, then a few steps more and some 
more shots; then we went to Jim Davis’ house.

Q. In Jim Davis’ yard whom did you find shot? A. 
As we got up close to the house, I saw two heads bob 
across the truck, as we come a little closer, something like 
fifty yards, they came around the truck, and a negro had 
hold of Mr. Scott.

Q. That was where? A. In Jim Davis’ yard.
Q. Did you and Dave Martin go right on down there 

in Jim Davis’ yard? A. Yes, sir.
Q. Whom did you find shot? A. As I walked up I 

heard Mr. Scott ask the negro to do something for him, 
and then said “lay me down” , and I walked up and picked 
Mr. Scott up myself, and took the negroes and put him in 
the truck and took him to Monticello as hard as we could 
go. The truck was between the barn and the house. It is 
five steps from the gate to Jim Davis’ front door.

DAVE MARTIN, a witness for the defense sworn says: 
Examination by Mr. Southard:

In 1925, Jim Davis lived on my place; this is a picture 
of his dwelling house; I remember the morning that Mr. 
Austin Scott was shot.

Q. Before you saw Mr. Austin Scott that morning 
state whether or not you received a message? A. Yes, sir.

Q- In consequence of the message you received, Mr. 
Martin, what did you do, where did you start? A. I 
started over to Jim’s house.

Q. Jim Davis’ house? A. Yes, sir.
Q. Where were you when you started, Mr. Martin? 

A. I was at my dwelling house.
Q. About how far is it from your dwelling house to 

Jim Davis’ dwelling house? A. Half a mile, I would 
judge, about.

Q. How far is it from your dwelling house to the big 
road : A. I suppose, about thirty five or forty yards.

Q. As you reached the road, who drove up ? A. Aus­
tin Scott.



SUPREME COURT 63
Appeal from Fairfield County

Q. Who was with Mr. Scott? A. Those two negro 
boys.

Q. Jack Jewett and Will Worthy? A. Yes, sir.
Q. Who was driving the truck, Mr. Martin? A. Will 241 

Worthy.
Q. What did you do, Mr. Martin, when you saw the 

truck? A. I waved it down.
Q. What did the truck do? A. It stopped.
Q. When the truck stopped, what if anything did you 

say to Mr. Scott? A. I asked him if he was going over 
to Jim Davis’.

Q. And what did he say? A. He said “Yes.” 242
Q. Then what did you say? A. Well, I says, “ Jim 

sent for me; I am going over there; I will go with you.”
I had Jack Jewett to get down off the truck to give me 
his seat, I told him to get on the back end of the car. I 
stepped up on the running board; Austin looked up at me, 
and he says, “ Oh, I will go over there and get them” , I 
then stepped down and told him, “ Well, all right; go 
ahead; I am going over there, but I can walk.” Austin did 
not then seem to be in a mad humor, that is what was said 
and done.

Q. What did the truck do, Mr. Martin? A. Moved 
right off.

Q. Which way did you then start, Mr. Martin? A.
On toward Jim Davis’ house.

Q. When you got up the road a piece whom did you 
meet? A. Gillie Martin.

Q. Did Gillie Martin at that time turn around and 
start to Jim Davis’ house with you? A. After I asked 
him.

Q. How far had you gone before you heard a gun fire?
A. I suppose, probably a hundred yards after I met 
Gillie.

Q. Could you see from where you were this truck with 
Mr. Scott and the two boys on it, as they turned off down 
this road? A. No, not after I met Gillie Martin, I 
couldn’t see the truck at all.

Q. Which direction did you and Gillie Martin then 244 
start? A. On down the road to Jim Davis’ house; that 
is where we were going to. The gun fire sounded like it 
was in the woods behind Jim’s house, we made a few



64 SUPREME COURT
The State vs. Jim Davis

more steps, and then I heard five or six more shots.
Q. Did you then go to Jim Davis’ house? A. Yes, 

sir.
Q. Did you there see Mr. Scott? A. Yes, sir; and 

he was shot. I helped to take him to Monticello; after that 
I returned to Jim Davis’ house; and there, I saw this 
negro boy, Jack Jewett.

Q. State what you asked him? A. I asked Jack 
what did Jim say to Mr. Austin.

Q. And what did Jack say? A. He said, he told him 
not to come in.

CROSS-EXAMINATION BY THE SOLICITOR:
I was at home that morning; I received a message from 

Jim Davis; and I left immediately, just as soon as I could 
shut up my house; around the road, it. is about a quarter 
of a mile from my dwelling to the camp; just as I got out 
of my house to start to Jim’s the truck with the negroes 
and Scott drove up; I had the conversation I have de­
tailed with them; there was nothing about his demeanor 
to excite my suspicions; I walked on behind the truck; 
Scott was riding on the front seat; Scott had on a sweat­
er, I believe, and khaki trousers. After hearing these 
shots, Mr. Gillie Martin and myself went on up to Jim 
Davis’. Mr. Scott was at the truck, he was shot, and suf­
fering; I noticed his right arm, I did not see him move 
it ; I rendered him all of the aid that I could; I took him 
to Monticello; I then returned to Jim Davis’ house, there 
I saw Jack Jewett; I asked Jack what Jim Davis said to 
Austin and he told me that Jim told him not to come in. 
I just asked him that one question.

Personally appeared WILLIE WORTHY, who first be­
ing duly sworn says: That he is Jim Davis’ son-in-law 
and that he was at the house of Jim Davis at the time Mr. 
Austin Scott was killed. That deponent insisted that his 
wife Clara Worthy and daughter of Jim Davis go and 
live with him on the grade but that his wife Clara Wor­
thy refused to go and that her father Jim Davis also ob­
jected but asked him to live at the house as the camp was 
not a fit. place for a decent woman to live on. Jack Jewett 
insisted but we were refused and when we left Jack 
Jewett who was the husband of the younger daughter of



SUPREME COURT 65
Appeal from Fairfield County

Jim Davis told him that we were going after Mr. Austin 
Scott and that when we returned there would be war.
Then Jim Davis told us to stay away and not to come back 
to his house again. 249

About a half hour thereafter we returned with Mr. 
Austin Scott and he got off the truck in a running walk 
and when he started in the gate he was shot.

DEFENSE CLOSES.
DR. E. S. WALLICK, recalled in reply, says; Direct 

Examination by the Solicitor:
I attended Mr. Scott from the time that he was shot 

until he died; I saw the nature of the wound in his right 250 

arm; It would not have been possible for Mr. Scott to have 
carried that pistol a hundred feet and handed it to anoth­
er, his arm was paralyzed.

Cross-Examination, by Mr. Southard: I graduated
from Vanderbilt University in 1888, have not attended 
any schools since I graduated; paralysis is an affection of 
the nerves; I do not know the name of the nerve that 
runs down the right arm; I can’t tell you the part of the 
brain that controls that nerve; it is a fact that if the hand 
is closed at the time that the nerve is severed it will stay 
closed until pulled open; but Mr. Scott couldn’t have 
handled the pistol; if he had his pistol in his hand and 
his hand clinched, it would have remained clinched the 
way it was.

RE-DIRECT: The law of gravity would be at work.
STATE CLOSES.

MR. SOUTHARD: Now, your Honor, at this point
I renew my motion for a directed verdict of not guilty, 
on the ground that there is absolutely no testimony to go 
to the jury, no controverted fact to go to this jury to deny 
the defendant his right of self defense; and it has been 
completely made out, every element that he is required to 
make out; and that the only reasonable inference that a 
jury could draw from this testimony, or that could be 
drawn from the testimony, is that the defense of self de­
fense is completely made out. And for the further rea- 252 
son, your Honor, that the defense of the castle is com­
pletely made out; and that the only reasonable inference 
to be drawn from the testimony is that both defenses



66 SUPREME COURT
The State vs. Jim Davis 

have been made out.
COURT: I will have to differ with you on that, be­

cause there is some evidence here from which you could 
infer a preparation to kill, before this matter came on, in 
sending for another party, in sending for another gun, 
and things like that, and that is for the jury. There is 
evidence here there is a purpose to bring on a conflict, 
with no effort on the part of the deceased; and the great 
inquiry is, what was the mind, and what did the killing 
grow out of, and was it necessary for him to kill.

MR. SOUTHARD: Then, your Honor, under that
view, there is absolutely no evidence here of murder; and 
I move to strike from the indictment the element of mur­
der, and require us to answer to the charge of manslaugh­
ter, only.

COURT: If he prepared and carried out his prepara­
tion in reference to the attacking of the deceased, and kill­
ed him out of that heart, that would be a wicked heart, 
and was prepared to kill.

MR. SOUTHARD: A man can have a wicked heart,
and he can have it in mind to kill, and yet, there be abso­
lutely no evidence of murder, a man can have a wicked 
heart, and make preparation.

COURT: If he killed him out of that preparation, and
out of that deliberation, and out of that wicked heart, 
that is a question for the jury.

Thereafter argument was made to the Jury; and then 
his Honor charged the Jury as follows:

CHARGE : The defendant, Jim Davis, is charged with
murder. The charge is that on the 9th day of November 
1925, in Fairfield County, he did kill and murder one J. 
Austin Scott. The defendant pleads not guilty to that 
charge. That puts the State to the necessity of proving 
it to your satisfaction beyond a reasonable doubt, any 
reasonable doubt. The defendant also sets up as a de­
fense, in addition to his plea of not guilty, that is his plea 
of self-defense, and also that at the time that he did the 
killing he was defending his home, which the law calls 
his castle, and if he had a right, he is to be excused for 
this killing, because he was defending his castle at the



SUPREME COURT 67
The State vs. Jim Davis

time that he did the killing; and if he makes out and con­
forms to the law of self defense, and makes out that plea 
by the preponderance of the evidence, on the plea of self 
defense, it is a good defense. Also, the defense of his 
castle, if he makes it in conformity with law, it is a good 
defense, and he is entitled to an acquittal upon one or both 
defense, or either of them.

Now, under this indictment you can find one of four 
verdicts, now, which one is right? Which of the four 
ought you to find under the law and the evidence. First 
what are those four verdicts that you can render. You 
can find him guilty, just the word guilty, and that means 
his life is forfeited to the State; or you can find him 
guilty, recommending him to the mercy of the Court, 
which means that his life is not forfeited, but he is to be 
incarcerated for the balance of his natural life ; or you can 
find him guilty of manslaughter, the result of which would 
be that he would be confined at hard labor in the County 
or in the penitentiary for a period of from two to thirty 
years, in the discretion of the Court. Or you can write 
a verdict of not guilty. Now which of those four ver­
dicts ought you to write under this law and the facts that 
have been testified ?

My duty is to give you the law. I can’t even quote the 
testimony to you under our system of jurisprudence. 
Now, remember that, that I don’t undertake to quote the 
testimony to you. I said to you that you can find one of 
four verdicts. The first I mentioned was murder. Ap­
ply the facts to the law as I give it to you. The question 
is, shall you find the defendant guilty of murder? You 
will have to know what murder is in order to apply the 
facts to the law.

Murder is the felonious killing of a human being with 
malice aforethought, either express or implied. Now, 
you are not accustomed to hearing that, and I am going 
to repeat it,—murder is the felonious killing with malice 
aforethought, either express or implied. There can be 
no such thing as murder without malice; it is the heart 
of murder; the sine qua non of murder is malice. There 
can be no such thing as murder without malice. And you 
notice the word aforethought, malice aforethought; that it 
is it must have been thought of or determined on, the kill-



68 SUPREME COURT
The State vs. Jim Davis

ing must have been thought of or determined on or deliber­
ated on before it occurred. It doesn’t mean that it took any 
time before hand, if it is in the killing itself, the malice, it 
makes murder if malice, is in the killing itself, we say a- 
forethought, that has reference to deliberation. It says a- 
forethought express or implied, the aforethought, the de­
liberation, express or implied. There are not two kinds of 
malice. You know that. It is the same kind of malice; 
but the manner in which it is made to appear in the trial 
of a case, we say express or implied. To illustrate what 
express malice, I said, “ I am going to kill John Doe” , go 
get me a pistol and go and kill him. There I have given 
expression to the deliberation that was in my heart; and 
we call it express malice. It is the same kind of malice 
if I had said nothing about it. Suppose, I shot John Doe 
without saying a word, wipe out a pistol without any rea­
son or cause, shoot him to death, I didn’t express my 
malice there, I gave no utterance to it by word or deed; 
but, nothing else appearing you would say, and every just 
man would say, “that man killed that man with a wicked 
heart” , nothing else appearing, you couldn’t help but say 
otherwise, that he killed him with a wicked heart. So, 
that is implied malice, implied from the act itself, from the 
manner in which it was done. So, you see, express or 
implied malice aforethought is the wicked heart, for the 
killing at least; we couldn’t prove it ; we couldn’t show the 
expression of it, but there it is. That illustrates the dif­
ference between the express malice and the implied mal­
ice. Now, we talk about express malice, that is made to 
appear by a man’s word or deed, as I have said; and proof 
of it is brought forth by making preparation, it may be 
by way of word he may express his malice; he may go to 
make preparation to express his malice, go lie in wait, 
watching for the man that comes along, his acts would 
express his malice, shows his deliberation, his premedita­
tion. Buying ammunition would express his malice; go­
ing for a gun would express his malice. Those kind of 
things give proof to express malice. And the others are 
implied. There is no expression by word or deed given 
to his malice.

Well, now, when you go to consider the case, you may 
say, “ I doubt whether or not it is murder, I doubt it” . If



SUPREME COURT 69

Appeal from Fairfield County
you have a doubt about it, whether it is murder or not; 
after you have heard the whole case, the whole testimony, 
then you will ask whether or not it is manslaughter. So,
I will have to tell you what manslaughter is. 265

Manslaughter is the unlawful killing of a human be­
ing without malice, usually upon some legal provocation; 
usually in sudden heat and passion upon some legal prov­
ocation. I will repeat that—manslaughter is the killing 
of a human being without malice, in sudden heat and pas­
sion, the sudden heat and passion brought about by some 
legal provacation, and that was the cause of the killing, 
sudden heat and passion was the motive, moving mo- 266 
tive of the killing,—not malice,—but passion, sudden heat 
and passion, not long passion, not long anger. If he has 
a reasonable cooling time and kills him in passion, if he 
has nursed his anger and wrath and kills him, that is the 
reason why the law says it must be a sudden passion to 
reduce the killing of a human being from murder to man­
slaughter,—not a long nursed passion, if he has had a 
reasonable time to cool off, his passion becomes malice, 
because the law says in sudden heat and passion, and the 
man who does the killing has been provoked to do the 
killing done by something done by the dead man, the vic­
tim, to him, that provoked him, and suddenly provoked 
him to do the killing, that would reduce the killing from

267
murder to manslaughter.

Now to illustrate that, that is, sudden heat and passion,
I am standing on the sidewalk, and a man comes up and 
draws back to strike me, I think that he is going to strike 
me, and I have a gun in my hand, or a stick, or some blud­
geon in my hand, that man provokes me by some remark 
or strikes me, or offers to assault me, and I raise the stick 
I have and strike him over the head, that kills him, and 
he drops dead at my feet, that is a clear case of man­
slaughter. There is the killing in sudden heat and pas­
sion, and I was provoked to do it. I use that as an illus­
tration.

Now, a man can act upon appearances in striking an­
other, that is, it appearing to him, that he was about to 268 
be assaulted, he would be justified and be excused to the 
extent to reduce the killing from murder to manslaughter, 
if it appeared to him that he was being assaulted, if he



70 SUPREME COURT
The State vs. Jim Davis

honestly believed that he was being assaulted, or about 
to be assaulted, and that, not that he believed, he must 
not only show that, that he believed, it appeared that he

269 did, it must appear, not only that he believed it, because 
that would leave to him the arbitrary right of another 
man, but that any other man of ordinary care, sense and 
caution would have been justified in believing as he 
claimed that he believed at the time of the killing then 
he could act on appearances when another man of ordi­
nary care and caution and judgment and sense would 
have been justified in believing as he said he believed, he

270 can act upon appearances in whether or not he was be­
ing assaulted. To illustrate that, a man may come up to 
you, he may be your friend, he may be a stranger, and 
suddenly, without your expecting it, throw a pistol on 
you, you may think, “ well, that pistol is loaded” , or not 
think it is loaded, the facts are for you; and you have a 
gun on you, and you jerk up your gun and kill him, now, 
you had the right to act upon appearances if you 
honestly believed that you were going to be shot by the 
man who drew the pistol on you; but, you can't be excus­
ed for acting on appearances if no other man situated as 
you were at the time would have been justified in believ­
ing as you claimed to have believed. So, you are not to 
be the judge about it; but the facts in the case must jus-

171 tify any other ordinary man of care and caution and 
sense to believe as you claimed you believed, then you 
can act upon appearances, and then only can you act upon 
appearances. Now keep that in mind in going through 
this entire case, that one principle in acting upon appear­
ances, because I will have to refer to that hereafter; and 
that is where a man can act upon appearances only, if 
any other man situated as he was at the time, with all of 
the circumstances, would be justified in claiming—acting 
upon appearances, he would then be justified if any other 
man would be justified in acting on appearances, then he 
would be justified.

Well, now the next grade of homicide is killing in self
272 defense. That is a defense. The defendant pleads self 

defense, in defense of my own life, or saving my body 
from serious harm. That is a perfectly good defense if 
it is made out in law. And you have got to know what



SUPREME COURT 71

Appeal from Fairfield County-
self defense is in order to apply the facts, testimony as 
you heard, to say whether or not he has made out his 
case of self defense. Now, the State, on the whole case 
has got to make out its case beyond any reasonable doubt, 273 
keep that in mind. And has got to make out every ele­
ment thereof, murder, or manslaughter, or whatever he 
is claimed to be guilty of, to make it out to your satisfac­
tion beyond a reasonable doubt; but when he interposes 
the plea of self defense, the burden of proof shifts from 
the State to him, not on the whole case, but upon the 
question of his right of self defense, and the burden is 
upon the defendant to show his right of self defense, not 274 
beyond a reasonable doubt as to the facts making up his 
self defense, but to your satisfaction by the greater 
weight of the evidence, as to which of the facts make up 
his self defense. Now, what does he have to make out by 
the preponderance of the evidence? He has to make out 
the facts or the elements of self defense. What has he 
to make out? First, that he was without fault in bring­
ing on the difficulty in which the killing occurred, he has 
got to establish that by the preponderance of the evidence, 
whether or not he brought on—was it his fault in bring­
ing that difficulty on? Well, you may say he has estab­
lished that, what must he do next? At the time of the 
killing, having established that he was without fault in 2?6 
bringing on the difficulty, by the greater weight of the 
evidence, he has to show 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, 
and in order to save his life, or his body from serious 
harm, at that time there was nothing else for him to do 
but to shoot or strike to save his life or his body from 
serious harm; he has got to establish that by the greater 
weight of the evidence. Then he has got to establish 
moreover, not only that he believed that he was in danger 
of losing his life or sustaining serious bodily harm at the 
time but that any other man, situated as he was at the 
time would have been justified in believing as he claims 
to have believed, to w it: that he was in danger of losing 276 
his life or suffering serious bodily harm from his antag­
onist, before he can shoot or strike in self-defense. There 
is one place where he can act upon appearances, but it



72 SUPREME COURT
The State vs. Jim Davis

must be the same as any other man situated as he was 
would have been justified in believing that his life was at 
stake, or receiving serious bodily harm; he has got to es-

277 tablish that by the preponderance of the evidence, and to 
make it complete and full, and give it all to you.

He has got to establish another thing,—four things, 
this is the last one, ordinarily, he has got to establish that 
there was no reasonably safe means of avoiding the diffi­
culty in defense of his life or loss of limb, he could not 
get out 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.

278 Now, those four things have got to appear before he can 
establish his plea of self defense. Now, listen closely, 
because that is going to be modified somewhat in my ref­
erence to the castle.

I laid down to you the law of self defense in four ele­
ments, because that is the law as to self defense, but it 
is going to be modified now some by the law of the castle 
or the home. Some of those elements of self defense 
don’t apply, because this law is to be modified of this 
law of the castle, a man’s life in his castle or home. The 
law says “ CASTLE” , but it means home.

Now, the home is a sacred place. It is a place to be 
guarded at the will of the head of it against all comers, 
except as his sovereign will dictates, the home is,—he 
can admit there or he can exclude from there at will; and 
nobody has the right to say “yea” or “nay” , as to his 
will over his home; it makes no difference whether that 
home is a hovel, or a tent, or a mansion, or a castle, the 
law lies over each and all with equal force. I said that 
a man was absolute master within his home, for protect­
ing his home, and to prevent intruders from coming in, 
but I don’t mean by that a man because he is in his home, 
and another entering it, and for that, and that alone, the 
law would excuse him to shoot him to death for attempt­
ing to enter, attempting to go in because there is such a 
things as a licensee, you have got to settle this in this case, 
whether the intruder if there was any intrusion in this

280 case was a licensee or whether he was forcibly entering. 
That has got to be settled by you. I can’t tell you, because it 
is a question of fact. Ordinarily, without anything appear­
ing, if a man goes to another’s home, peaceably, orderly,



SUPREME COURT 73
Appeal from Fairfield County

without any show of violence, he is a licensee. If it is 
known to him that he is objectionable, if his entry is ob­
jectionable, he is a trespasser, if he goes, and entitled to 
be treated as a trespasser; but, if peaceable, he under- 281 
takes to go, until he has notice that his entry is disputed, 
he is a licensee; and the law of the licensee in this case, 
that is for you to say, I can’t go further than to tell you 
what the law is. But the further instances, by word, by 
deed, by sign, or otherwise, if a man is a licensee, has no­
tice, directly or indirectly by circumstances, or anyway 
he has notice, and you believe it, that his entry is objec­
tionable to the owner of the home, he must stay out of it 282 
because he is right in his home and over his home, and he 
has to stay outside of it. Even if he is invited into that 
home and urged to come into it, a guest in the home, and 
for cause or without cause, the owner of the home says 
“you must get out” , he must go. But after that owner has 
invited him to get out he has got to peaceably try togethim 
out, take him by the arm and lead him towards the door or 
off his premises. Now if he is resisting,—that applies to 
anybody that comes in and is given notice to get out, be­
cause he is a licensee up to the time that, if he has no notice 
that he is objectionable. We couldn’t transact business 
unless that was so, you can see that, because that is com­
mon sense. We couldn’t walk to the house of our 2g3 
friends if that wasn’t,—without hands on the trigger, 
that wouldn’t do. And there is what is called implied 
consent of the owner of the house, called implied consent.
He has implied consent unless he has some notice, to 
come and go. Now, I said when he tells him to go, he 
must go, a licensee, a guest, or otherwise. Whenever the 
will of the owner of the house 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 don’t go, he can’t take hold of him and knock him on 
the head and batter 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 a right 284 
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. Now, if in using that force to



74 SUPREME COURT
The State vs. Jim Davis

expel him, he takes his life, by the use of the force to ex­
pel him, the law says that he will be excused for it, and 
if his intruder has a deadly weapon, and he sees he has a 
deadly weapon, he can use the same kind of force, and 
use more of it and kill him with the deadly weapon, and 
in using the force to expel him, and he will be excused; 
but that is using force to expel him. I don’t know of any 
law that in the very first instance that excuses a man in 
his home, for using a deadly weapon on another unless 
there is some circumstance that justifies it or excuses, 
that is if the other party he can overcome without the 
use of a deadly weapon. I am talking about another 
case; I am not talking about this, just to illustrate the 
law. It is for you to apply the facts to the law.

Now, a man, on his own premises, an intruder comes 
along, he wants to expel a man from his premises, and a 
man keeps coming, you don’t have to get back. I told you 
in self defense, he had to do what he could do to avoid the 
difficulty; but a man on his own dung hill, own home, he 
can go forward, he is the man that can go forward when 
he is in his own home, he can go onto where the intruder 
is, he can take hold of him, he can use force to put him 
out, he don’t have to retreat. That is the first law of 
self defense, if he is on his own premises, and that is the 
cause of the trouble, that is, forceable entry is being made 
on him on his own premises, he don’t have to retreat; and 
if entry is the cause of the killing, in his plea of self de­
fense, he would not be at fault in bringing on the diffi­
culty, that element of self defense would not have to be 
established, because the other party was making forcibly 
entry, and if that is the cause of the killing, it came out of 
that, the other fellow is making forcible entry, then you 
can’t charge a man in his own house, if he attacked him 
for making forcible entry which is unlaw as to his 
rights of home, then he can’t be charged or compelled by 
the greater weight of the evidence to show that he was 
at fault, because he wasn’t at fault, because he was try­
ing to prevent a forcible entry, and that element of self 
defense would fall out before that, now, upon the grounds 
that he was making forcible entry, and forcible entry is 
unlawful as against the rights of the man in his home. 
That would nullify it, if he was making forcible entry



SUPREME COURT 75

Appeal from Fairfield County
and the killing came out of the resistance of the forcible 
entry, then the man in his home would not be at fault. 
That is what I say, and that would nullify the necessity of 
his establishing that he was without fault in bringing on 
the difficulty, because he wasn’t if the other man was for­
cibly entering, was violating his rights at the time, he 
can attack him by reason of his forcible entry, and in so 
doing, why that would nullify the necessity of establishing 
that he was without fault in bringing on the difficulty, for 
the man’s forcible entry would bring on the difficulty in 
that case.

Also, I want to instruct you that a man has the right 
to defend his home from any intrusion for any purpose 
whatsoever at his will, but he must do it according to the 
law. If he is a licensee, he must warn him, and if he 
doesn’t act on warning, not to get out, then he must take 
hold of him, and use force to put him off, and eject him. 
And he can exercise that same right in reference to his 
home, in behalf of the members of his family, or for any 
other cause that I know of. It is his will to determine 
whether a man can come into his house or not. He is 
absolute on that question. If a man is there, it don’t 
give him the right to shoot and kill, but he must comply 
with the law in ejecting him and that applies to his own 
premises, even his curtilage, or the land; but it specifi­
cally applies to his home with greater force, because that 
is a man’s castle.

I refuse the first three requests, which are special re­
quests. The first request, I am afraid refers too specifi­
cally to the facts. I will have to refuse that one; the 
second one is so mixed up, I will have to separate it, I 
don’t think that it will stand, I think that it refers to the 
facts, and I will have to refuse. There is some good law 
in it, and if it wasn’t for the injection of conclusions of 
fact, as I conceive it, I would charge it. The last par­
agraph of it, I charge you this:—Modified however,— 
“ It is necessary for a defendant, in a case like this, to 
show that at the time of the killing he entertained an 
actual, bona fide belief or thought that he or someone 
who he had the legal right to defend was in imminent 
danger of the loss of life or of sustaining serious bodily 
harm, and that the danger either real or apparent was



76 SUPREME COURT
The State vs. Jim Davis

such as to warrant a similar conclusion by a man of or­
dinary judgment, reason, and firmness in order for you 
to write a verdict of not guilty.” That is, that he could 
defend the members of his family if they were in danger 
of losing their lives or suffering serious bodily harm; 
and, on appearances he could defend them just as he 
could defend himself, if a man of ordinary prudence and 
courage would have believed as he did. I have charged 
you that already, and I charge it again.

I charge you this in addition and in conformity with 
my charge already made:

THIRD: “Now, as to the amount of force a man may 
use when he is defending himself, or those of his family, 
or those guests which may be in his dwelling, the Court 
in the case of The State vs. Lightsey, 43 S. C. 166 said 
‘that a man has the right to use more force to put a man 
out of his dwelling, or out of the curtilage of the dwelling 
than he has to expel a trespasser on his lands which are 
not a part of the curtilage, or of the dwelling; in the case 
of a dwelling house or the curtilage of it,—the master 
of the house assaulted or apparently about to be assaulted 
has the right to use such force as may be reasonably nec­
essary for his complete self protection, or which in the 
mind of a person of ordinary firmness, and reason would 
reasonably prevent the assailant from taking his life, or 
inflicting serious bodily harm. He was not limited with 
the right to repel force with force; he was not limited to 
use the same force and no more than that with which he 
was threatened. The defendant had the right to use such 
necessary 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. Hence, being in his dwelling house, the defendant 
Jim Davis would have the right to exercise all needful 
force to keep aggressors out, even to the extent of taking 
life.”

I charge you that is the law; I have charged you that 
already. You see, the man had the right to expel an­
other off his premises, especially his home, and he, of 
course, had the right to use more force than the other 
man uses, to expel him, otherwise he couldn’t over­
come that one; his right is to use more force than the



SUPREME COURT 77

Appeal from Fairfield County-
man coming on him, to get him out of his house. He 
has that right on his plantation, to use the necessary 
force. He has got to overcome the other man’s force, 
that is resisting, to get him out; he has got the right to 297 
use more force than the man uses, that he is putting out.

I am asked to charge you this:—
“ FOURTH: It is a high and exalted privilege to be

the master of one’s house; and it is the law in South Car­
olina that the father and husband is the master of the 
house. It is the right of the master of the house to keep 
every intruder out, with or without cause. He does not 
have to consult with his neighbor, and ask him who he 298 
shall admit in his house. He does not even have to con­
sult with his landlord as to whom he will admit in his 
house. He does not have to consult anything except his 
own wishes. If he desires to admit one into his dwelling 
that is his business; if he desires not to admit one into 
his house that is his business and his alone. A man’s 
dwelling is his castle, it is his place of habitation, how­
ever humble it may be; and he is the master of it what­
ever his color may be.

I charge you that; I have charged you that already.
I am requested to charge you, and do charge you,—
FIFTH: I charge you that a man is not only the

master of his dwelling, but he is also the master of the 
curtilage, the out-buildings and grounds surrounding the 
dwelling and used by the master of the house and in 
connection with the dwelling; that the curtilage in South 
Carolina is two hundred yards from the dwelling house, 
two hundred yards in every direction, from one’s dwell­
ing house, and used in connection therewith.”

Now that is the law in reference to burglary and ar­
son. There ain’t no doubt about that being the law in 
South Carolina, because it is the statute. At common 
law it is not; the common law is confined to the enclosure 
that is used in connection with, of the dwelling, pertain­
ing to the dwelling, and used in connection with the 
dwelling; but that is fixed as the curtilage in this state 
in reference to arson and several other felonies, that is, 300 
the two hundred yards. But sometimes a man’s place 
abutts right against another man’s place, or right across 
the road another’s place, possession comes in, and that



78 SUPREME COURT
The State vs. Jim Davis

would not be a part of his curtilage; but that is the cur­
tilage as fixed by the statute in this state in reference to 
crime. I am going to leave it in, that definition, and 
charge you that.

“SIXTH: I charge you that one may not only defend
his dwelling house and the curtilage of the same if neces­
sary or apparently necessary against one who manifestly 
endeavors to enter the same in a wanton, riotous, or vio­
lent manner; but, also against one who is only attempt­
ing to commit the misdemeanor of a forcible entry, even 
to the extent of killing the assailant if such degree of 
force be reasonably necessary to accomplish the purpose 
of preventing a forcible entry.”

Now, he had the right to expel a man, and he had a 
right to prevent forcible entry. Keep those two things 
in mind. He had the right, if a man is just determined 
to go on in his house, he can use the force to prevent his 
coming on in his house, over his premises, and if he kills 
him in using that force to prevent him from making his 
forcible entry, why then he is to be excused on his rights 
of castle. Keep that in mind now. He can prevent a 
forcible entry.

Continuing, SIXTH request: “Likewise, I charge you
that one may not only defend his dwelling and the curti­
lage, if necessary, or apparently necessary against one 
who manifestly endeavors to enter the dwelling house or 
curtilage with intent to commit a felony on him or some 
inmate of his household, or a guest in the house, or even 
the habitation itself. Where one goes to the dwelling 
house or within the curtilage thereof with the manifest 
intention of taking some member of the family out, not 
being an officer, and armed with the proper process of a 
proper court, he is a trespasser, and the master of the 
house may go to the extent of killing him, if such degree 
of force be reasonably necessary or apparently necessary 
to accomplish the purpose thereof in not allowing him to 
do so.” That is the law, I charge you that; I have prac­
tically charged you that already.

“SEVENTH: I charge you that if one’s daughter is
married to a man that she is not required to go with her 
husband where he goes, or to change her residence with 
him. She may remain with her father if she so desires,



SUPREME COURT 79

Appeal from Fairfield County
and if one enters another’s dwelling or the curtilage 
thereof for the purpose of taking her out and delivering 
her over to the custody of her husband, and if he is not 
an officer of the law, armed with the proper process of the 
law, issued out of a proper court, even though her father 
is keeping her from going, and holds her in custody 
against her will, that such a one would be a trespasser, 
and that the master of the dwelling house or curtilage 
would have the right to prevent that one from entering 
his dwelling house or from entering the curtilage thereof, 
even to the extent of killing him, if such degree of force 
be reasonably necessary to accomplish the purpose of pre­
venting the forcible entry or of taking one’s daughter out 
of his dwelling, or from off of his premises.”

For any reason a man can request a man to stay out 
of his house, and if he goes in he is trespasser, no matter 
what the reason.

“ EIGHTH: I charge you, Mr. Foreman and gentle­
men of the jury, that where one is an invited guest in 
one’s dwelling house, and for any cause whatsoever be­
comes objectionable to the head of the house, the law 
requires the head of the house to gently lay his hands 
on him, and request him to withdraw therefrom and de­
part, and if such invited guest refuses to so depart, then 
the master of the house may then eject him, using what­
ever force is reasonably necessary to accomplish the eject­
ment, even to the extent of killing him, this is where a 
man is an invited guest in your home.”

The second paragraph of the eighth request charged, 
as follows: “Where a man is not an invited guest, and
where he is a trespasser, if his entry is not quiet and 
peaceable, no request to depart, or the laying on of hands 
need precede, as a legal requirement, the act of eject­
ment may be immediately made by such force as may be 
reasonably necessary even to killing him, for the very 
obvious reasons, as is well said, in one of the cases, ‘since 
a trespasser knows as well without expressing words as 
with, that his absence is desired.”

Well, I have charged you that practically that, if a man 
is a licensee and has no reason, the very minute, by cir­
cumstances or otherwise, he has notice that he is an in­
truder, is not desired, that minute he becomes a fres-



80 SUPREME COURT
The State vs. Jim Davis

passer so far as the owner of the house is concerned; and 
in ejecting him or preventing him from going to the 
house or entering the house, or in using force to expel 

309 him or prevent him, in the use of that force to expel him, 
or preventing him going to the house, he kills his antago­
nist, or the trespasser, or a person that is trying to enter 
that is a trespasser, then he is to be excused, if in using 
that force to expel him or prevent him making entry, then 
he is to be excused. Now, that is the law, I have charged 
you that, and charge you that.

Third paragraph of eighth request changed, as follows: 
S10 Hence, I charge you that if Jim Davis was in his dwell­

ing house or the curtilage thereof, and if you should find 
that Mr. Scott’s entry was not peaceable and quiet, and 
that if you find that he was there for the purpose of mak­
ing a forcible entry into this man’s dwelling, or for the 
purpose of taking away one or both of this man’s daugh­
ters against the will of Jim Davis, then and in that event 
Jim Davis would not be required to request him to depart, 
neither would he be required to lay his hands on him, if he 
was a trespasser and knew as well without express words 
as with, that his absence was desired, he would have the 
right to use as much force as was reasonably necessary, 
or as is apparently reasonably necessary, to prevent his 
forcible entry, or the taking away of his daughter or 

3,1 daughters, and if he used such force as is reasonably nec­
essary to prevent a forcible entry into his dwelling house, 
or into the curtilage thereof, or to prevent the deceased 
from entering his home and taking therefrom his daugh­
ter or daughters, then it is your duty to write a verdict 
of not guilty.”

I charge you that. That is nothing more than saying 
that if he was going in there to effect a forcible entry 
against the consent of the owner of the house, and he 
used necessary force to expel him, or used necessai'y force 
to prevent him from his forcible entry and in the use of 
that force he died from the use of that force upon 
him and that force was necessary, and would have 

si9 appeared to have been necessary to a man of ordinary 
courage and sense, to use it and he died of that result, why 
then he would not be guilty.

MR. SOUTHARD: I would like to ask also, you



SUPREME COURT 81
Appeal from Fairfield County

charge in that connection, this is the same request we 
are on, the 8th., I say in that connection, I would like for 
your Honor also, with what you just stated, you modified 
the request,—

COURT: I didn’t modify it; I put it in other words.
MR. SOUTHARD: I would like for you to add “and

if from the facts and circumstances the deceased knew or 
had reasonable cause to know” ,—

COURT: I so tried to word it.
MR. SOUTHARD: All right sir, then no express

words to depart.
COURT: No, if he had any kind of notice or knew, I

expressed that.
COURT: Now, the ninth, I will have to refuse that;

it is a little confusing of the facts and the law; can you 
amend it so I can get it in?

MR. SOUTHARD: I took that practically from Cor­
pus Juris.

COURT: I don’t think that is exactly the statement
of the law.

MR. SOUTHARD: Now, that law I took from Corpus
Juris, I didn’t get it from any decision of this State.

COURT: Well, it is not my idea, because I don’t think
that he has to have permission to go onto the premises, 
because he would be a licensee.

MR. SOUTHARD: That would be an implied per­
mission where he is a licensee. There are only two kinds 
of permission in the law, one is express permission to 
go,—

COURT: Let me read it again that word exclusive;—
MR. SOUTHARD: That is what the law books say.
COURT: I can’t use that word “ EXCLUSIVE.”
MR. SOUTHARD: Amend it to that point; that is the

word CORPUS JURIS uses.
COURT: Now, the jury can’t see what I see. I see

that means, that it means on paper because of your punc­
tuation ; I can see these other things qualifying that, but 
the jury can’t see that.

Now, gentlemen, pay attention to this, I am asked to 
charge this, and it is good law, if you understand the 
punctuation of it:

“NINTH: In reference to a peaceable and quiet en-



82 SUPREME COURT
The State vs. Jim Davis

try onto another’s curtilage, or into his dwelling house, I 
charge you that the right to go into a person’s dwelling 
house is the same as excluded;— ” Well, now in a sense 

817 that is true, but a man without notice has license to go. 
It is exclusive to that extent, only that a man a licensee 
isn’t excluded, because he is presumed to have implied 
consent, and take that word “ exclusive” , with that mean­
ing in it, why that would be law, because all this qualifies 
that word “ exclusive” , as it is written here on the paper, 
In reference to a peaceable and quiet entry onto another’s 
curtilage, or into his dwelling house, I charge you that the 

sis right of going into one’s own dwelling house and onto 
one’s curtilage of the same is exclusive, that it is limited 
to those only who have either the express or the implied 
permission of the head of the house; and any unwarrant­
ed entry without the leave of the head of the house, either 
express or implied, whether the same be inclosed or not 
is in law not a peaceable and quiet entry; and where it is 
made or attempted to be made over the physical or verbal 
protest of the head of the house, it is a forcible entry, 
whether any actual force be used or not in making or at­
tempting to make said entry.”

MR. SOUTHARD: Now, your Honor, since you use
the word “ licensee” , and modified my request to that ex­
tent, I would also like for your Honor to charge the jury 
not only the use of the word “ licensee” , here, but where 
it has been used in the charge, that any right a licensee 
has, is one who goes onto another’s premises for reason­
able cause under all of the facts and circumstances to 
know that his presence on the man’s premises, taken in 
connection with his purpose for being there, is not ob­
jectionable to the head of the house.

COURT: I think I have described that fully. I charge
you that this last No. 9, the word exclusive doesn’t have 
reference to the word licensee.

COURT: I refuse ten, it bears on the facts.
Eleventh, I had to refuse.
Twelfth, I had to refuse, some of it because they are 

820 in the nature of facts, because I don’t think it applicable.
MR. SOUTHARD: I would like to ask your Honor as

to No. 10, for permission to amend the middle of it, “ I 
charge you that Jim Davis ” and put in front of it the



SUPREME COURT 83
Appeal from Fairfield County

word “ if”—
COURT: How is that on 10th? I will refuse to

charge eleven and twelve as written, but substitute this 
as the charge therefor,— “ If the deceased went there 321 
of his own accord or with others, to commit a for­
cible entry upon the home of the defendant, why he had 
the right to prevent him from making a forcible entry 
by force sufficient to prevent him; and if in using that 
force to prevent him from committing forcible entry he 
killed him, why he would be excused from killing him, 
if he went there as the representative of other people to do 
for them, or went with those other people to help them, 322 
joined with them in committing forcible entry, or if he 
went there as their agent to commit forcible entry by 
himself, he would have been wrong in his efforts to com­
mit forcible entry by himself or for anybody else,—and 
he would have the right to use the force necessary to pre­
vent him, even to taking his life; ain’t no doubt about 
that, but that force is even to the force to prevent him,— 
if that was the force that caused his life, that is a ques­
tion for you, that is for you to say what force was it that 
caused this man’s death, was it the necessary force, or 
force necessary to prevent him from committing forcible 
entry, or to eject, either way. Was it or not? I can’t 
say or intimate. Now that covers the eleventh and 
twelfth, substituted for the 11th and 12th. Now, I 
charge you this part of twelve, because it seems to be in­
dependent statement from the twelfth,—and I charge 
you that it is the law and so charge you,— “ In order that 
a homicide may be excusable in defense of the habitation 
it is not necessary that there be peril of death or great 
bodily harm, as an unlawful attempt to enter with ap­
parent purpose of effecting a forcible entry, or an appar­
ent purpose of assaulting one there, or the taking of one 
out of the dwelling house, justifies the defense of the hab­
itation.” I so charge you that.

Now, I have to refuse thirteen; I think it is a sort of 
repetition to the others; and about a subject I don’t think 
there are any facts about, and conclusions drawn by 324 
counsel, but I don’t think it applies to the case, as to 13 I 
refuse it.

Now, as to fourteen, except what I have marked from



84 SUPREME COURT
The State vs. Jim Davis

the word “ There” down to, concluded, I charge you.
MR. SOUTHARD: All right.
COURT: As amended, I charge you this.
FOURTEEN: In this state a wife is her own free

moral agent, for reasons satisfactory to herself she may 
determine that she does not care to live with her hus­
band, and not even the Courts can force her to live with 
him, or to accompany him, or to make his residence her 
residence. These are matters to be determined by her, 
and by her alone. If she chooses to remain with her 
father and under his roof, and under his protection to 
that of her husband, if she is legally married to him, no 
one may interfere with her in her decision, and if you 
should determine that Austin Scott went to this home of 
the defendant Jim Davis for the purpose of taking or get­
ting Clara Worthy out of the dwelling house of Jim Da­
vis, even though she was over sixteen years of age, and 
had been legally married to William Worthy, after she 
had expressed her determination and intention of remain­
ing with her father Jim Davis, or if he went there for the 
purpose of aiding, counselling, assisting and abetting 
Willie Worthy to forcibly take her out of said dwelling 
house, and from the custody of her father Jim Davis af­
ter she had determined to stay with her father, and if 
they or either of them were attempting to, by forcibly en­
tering into this man’s dwelling house or the curtilage 
thereof for said purpose, and if it was reasonably neces­
sary to prevent the taking of said Clara Worthy, from 
the said dwelling house, then you would write a verdict 
of “ Not Guilty.” I so charge you that.

FIFTEENTH, I will have to refuse.
SIXTEENTH, I charge that, with a little amendment 

to that as follows, “ I charge you further, gentlemen, that 
if Austin Scott entered the curtilage of the defendant, or 
was trying to effect an entrance to his dwelling over the 
verbal protest of the defendant and against the will and 
instructions of the defendant, even though the deceased 
may not have intended to therein commit a felony, misde­
meanor, or breach of the peace, yet his failure to with­
draw and depart upon the instructions and demand of the 
defendant would not change the rights of the defendant, 
but the defendant would have the right to use such force



SUPREME COURT 85

Appeal from Fairfield County
as was reasonably necessary to put the uninvited and un­
desired one, the deceased in this case, off and from the 
premises, even to the extent of taking his life, if that be­
came necessary to take his life, to prevent him from mak­
ing a forcible entry, or to eject him from the premises.” 
I charge you that with that amendment.

“ SEVENTEENTH: I charge you, Mr. Foreman and
gentlemen of the jury, that the right of a man to have 
arms, that is, pistols and guns in his dwelling house and 
on his curtilage is a constitutional right, given to every 
citizen under both the State and Federal Constitutions, 
and if one learns or has information that another is about 
to make forcible entry onto the curtilage, or into his 
dwelling house, then that one has the right to borrow 
firearms and ammunition for the purpose of protecting 
his person, his dwelling, his curtilage, and any member 
of his family, and any invited guest in his dwelling, and 
such preparation by the defendant to defend his dwelling 
and curtilage, from a forcible entry, or his person, or the 
person of any member of his family, or the person of any 
invited guests, being a lawful preparation is not to be 
considered against the defendant by the jury, for in such 
event he is doing only what under the law he has a right 
to do. Not only has he the right to borrow firearms, or 
to arm himself for this purpose, but for a like purpose, he 
would have the right to procure his friends and neighbors 
and any member of his family to stand by him armed, 
and assist him in ejecting one about to make such forci­
ble entry, or to defend himself or any member of his fam­
ily or any invited guest against an assault; or to aid and 
assist him in defending his place of habitation, even to 
the point of killing the one making the forcible entry, or 
about to make an assault, provided a reasonable, prudent 
and courageous man under like circumstances would have 
reached the same conclusion; and for that no one would 
be guilty of any crime, but each one aiding and assisting 
him, would be entitled to a verdict of not guilty; and un­
der such circumstances it would be the duty of the jury to 
write a verdict of not guilty.” I charge you that.

Now, I can’t say what, if any, preparations were made. 
I can’t say how the jury shall consider that conclusion 
they shall write, if any preparations were made, I can’t



86 SUPREME COURT
The State vs. Jim Davis

intimate to you, anything about any preparations, as I 
don’t know as a Court sitting if any preparations were 
made, and it is for you to determine if there was, and 

388 what the meaning of those preparations were, I can’t in­
timate, and with the qualification, I charge you that part 
of it. “ Not only has he the right to borrow firearms, or 
arm himself for this purpose or like purpose, he would 
have the right to procure his friends and neighbors and 
any member of his family to stand by him armed, and as­
sist him in ejecting one about to make such forcible en­
try, or to defend himself or any member of his family, or 

334 any invited guest against an assault, or to aid and assist 
him in defending his place of habitation, even to the point 
of killing the one making the forcible entry, or about to 
make the assault, provided a reasonably prudent and 
courageous man under like circumstances would have 
reached the same conclusion, and for that no one would 
be guilty of any crime, but each one aiding and assisting 
him would be entitled to a verdict of not guilty; and un­
der such circumstances it would be the duty of the jury 
to write a verdict of not guilty.” Yes, if a man has no­
tice that his home is about to be invaded by a crowd, 
even by one man, he has the right to borrow a pistol and 
make preparation to defend his home, and keep anybody 
out. That is the law. I can’t intimate to you how you 
shall conclude if there was any such preparation, or any 
such being done. I can’t talk to you or intimate what 
conclusion would be, of any preparation being made. That 
is all I mean to say on that. And with that statement I 
charge that.

“EIGHTEENTH: I charge you, Mr. Foreman and
gentlemen, that the defense of self defense, and the de­
fense of the habitation and the curtilage stand on differ­
ent grounds and involve somewhat different principles. 
There may arise, however, as in this case, evidence which 
makes it necessary for me to submit both self defense and 
the defense of the habitation or the castle and the curti­
lage; and under the law a defendant may plead both, or 

336 more defenses, and if he successfully establishes either, 
he is entitled to and it is your bounden duty to write a 
verdict of not guilty.”

I charge that. A man can put in his defense of himself,



SUPREME COURT 87
Appeal from Fairfield County

any defense he has, and if he establishes it, if he estab­
lishes the plea of self defense, he is entitled to an acquit­
tal on the plea of self defense; if he establishes that he 
was defending his castle, if necessary to defend it, if he 
establishes that by the proof, I don’t know anything about 
the proof, what that means, if he has made out one or two 
of them, the defense of it, or established both of them, 
he is entitled, if he establishes one, he is entitled to the 
defense.

“ NINETEENTH: Now, where one’s curtilage has
been invaded by a trespasser, the occupant of such prem­
ises has the right to repel such invasion, and eject such 
trespasser, and in order to accomplish his purpose he may 
use such force and weapons as may be reasonably neces­
sary, and not only may he meet force with force, but he 
may go forward and advance, and if it becomes reason­
ably necessary or apparently necessary in making such 
ejectment or repelling such invasion, he may kill the in­
truder; and if you should find from the evidence that 
these were the facts, your verdict will be Not Guilty. As 
I have already instructed you two hundred yards sur­
rounding the dwelling and used in connection therewith 
is the curtilage.” I charge you that. Remember what I 
told you about “ apparently necessary.” If the force he 
used was used to eject him, or prevent him from making 
a forcible entry, that is the only force that caused his 
death that will excuse a man for killing his fellow man, 
and, now, keep that in your mind, if the force used is to 
prevent his forcible entry, which is a violation of the law, 
if in using the force to prevent him or expel him is the 
cause of his death, then he is entitled to the benefit of it. 
And if he makes out his case, he is entitled to be excused 
on it.

Now, TWENTY, I charge: “ The safety and security
of the homes and places of the habitations of our people is 
one of the elements of our civilization, and it is the right, 
and privilege, and the duty of every man to defend his 
home and the inmates thereof whether they be members 
of his family or invited guests against the invasion of in­
truders, trespassers, and violators of the law.” That is 
true.

I charge you, TWENTY-ONE: “ I charge you that it



88 SUPREME COURT
The State vs. Jim Davis

is the violation of the law for one to attempt to invade or 
unlawfully enter the curtilage, and dwelling house of an­
other ; or even for that matter to go upon another’s prem-

341 ises, hence, I charge you that if Mr. Scott knowingly on 
the occasion mentioned was attempting to invade or en­
ter the curtilage of the defendant or his dwelling house, 
either, against the will of Jim Davis, for any purpose 
whatever, he was acting in violation of law.” I amended 
that by putting the word “ knowingly” ; otherwise he is a 
licensee.

“ TWENTY-TWO: I charge you further, that if Mr.
342 Scott was attempting in violation of law, on this occasion, 

at that time that he came to his death, to enter the curti­
lage of the defendant Jim Davis, then under such circum­
stances Jim Davis had the right to repel such invasion, 
and such unlawful trespass, to prevent forcible entry, and 
to advance, and to go forward to eject him, and to use 
such force as was reasonably necessary or apparently nec­
essary, and to use such weapons as were necessary or ap­
parently necessary, and if in repelling such intrusion, 
and in making such ejectment it became reasonably nec­
essary or apparently necessary for his own safety to kill 
Mr. Scott then write a verdict of Not Guilty.” I added 
to prevent forcible entry. I charge that.

I refuse twenty three.
MR. SOUTHARD: Now, your Honor, that is certainly

correct law, and it is important in this case, and I want 
to call your Honor’s special attention to it, and make a 
special request that the request be charged. I don’t think 
it is worded so as to be objectionable on the facts; that, 
then, your Honor, would be a trespass after notice, which 
in law, would be wilful and highhanded.

COURT: If they were acting peaceably, I don’t know.
I am afraid to charge that in this case. In reference to 
this, I am in doubt about it, I am going to refuse it as it is.

MR. SOUTHARD: I just want to insist, your Honor,
that it be charged.

COURT: I am going to refuse that as it is stated. It
844 might be or it might not. I am afraid that is for the 

jury; I am afraid that it would be intruding on their 
province.

I charge you TWENTY-FOUR: I charge you with some



SUPREME COURT 89
Appeal from Fairfield County

little amendments: “So, if you should further find that 
Mr. Scott, acting in concert with Jack Jewett and Willie 
Worthy, or either of them, went onto the premises of Jim 
Davis, and onto his curtilage, after they had been denied 545 
admission into Jim Davis’ dwelling house, for the pur­
pose of invading Jim Davis’ curtilage and dwelling to ac­
complish any purpose which they had been refused, he, J. 
Austin Scott would thereby become a participant with 
them, in an unlawful enterprise, and in the unlawful in­
vasion of Jim Davis’ rights, and such concerted action 
would make him an accomplice in such unlawful under­
taking.” But it must appear that they were all three 346 
acting for the same purpose, absolutely. Well, I don’t 
know that that is true. That he would necessarily be­
come a—well, that is a question for you to find whether 
Austin Scott was participating, that is a question for you;
I can’t settle that, and don’t settle it, and wouldn’t charge 
you that part of it, because in what attitude Austin Scott 
went there, or these other parties went there is a question 
entirely for you; I can’t help you,—Austin’s presence, 
what his capacity,—or what the relationship between 
these parties was, if he was assisting, and went back to 
help them out. I have already told you what one did was 
for all; if he was there in violation of law, they, too, and 
all of them; but to tell you what capacity he was in, I ^  
can’t tell you that, because that is a question for you. If 
he was acting with them, acting for them, and at the 
time they were committing a forcible entry, why then, of 
course, all that was there, took part in the forcible entry, 
were equally criminal or equally blamable.

I will have to refuse to charge you that as stated; I 
don’t care to charge that conclusion there; refused 
twenty four, except amended as charged. I substitute 
my charge for twenty four. Twenty five is a charge on 
the facts, and on the conclusions in there.

“ TWENTY-SIXTH: I charge you further, that if
you have a reasonable doubt as to whether or not the de­
fense of self defense or the defense of the habitation, that 
is the curtilage and the dwelling house, or either of them *« 
has been established, then it is your duty to write a ver­
dict of Not Guilty.” And a reasonable doubt is what it 
says, it is a doubt that arises in an honest mind, or from



90 SUPREME COURT
The State vs. Jim Davis

consideration of the evidence taken in this case, and from 
nothing outside of this case as the grounds of the doubt; 
and if you have one growing out of the evidence in the 
case, in any phase of it, the defendant is entitled to that 
doubt, and acquit him upon that doubt.

I charge twenty seven: “ I further charge you that 
if you have a reasonable doubt as to whether an essential 
element of either defense, that is, self defense, or the de­
fense of the habitation, that is the curtilage and the dwell­
ing house, has been made out by the preponderance of 
the evidence, then it is your duty under the law to deter­
mine such doubt in favor of the defendant, and as to that 
element find him not guilty.” I charge you that.

TWENTY-EIGHT, I charge you: “ That both as to the 
doctrine of self defense and as to the doctrine of the de­
fense of the habitation that a defendant has the right to 
act upon appearances and to use force and weapons under 
circumstances considering all of the facts as would a man 
of ordinary reason, and prudence and courage deem nec­
essary or apparently necessary, and even if you should 
find that the defendant was mistaken in his belief as to 
the force and weapons to use, if you should find from the 
evidence that a man of ordinary reason and prudence 
would have reached a similar conclusion under like cir­
cumstances, write a verdict of Not Guilty.” I charge you 
that, and charge you that all along.

I have to refuse twenty-nine, and thirty.
I charge you THIRTY-ONE: “ I charge you that if you 

find from the evidence that all that had occurred, and the 
circumstances were sufficient to justify a man of ordinary 
prudence and courage in reaching the conclusion that his 
curtilage and dwelling were being or about to be invaded 
with force and arms, then under such circumstances the 
defendant would be entitled to use such force and arms 
as were necessary to repel the invasion and to protect 
him and his family in the safety and security of his home, 
and would be entitled to have at your hands a verdict of 
Not Guilty.” I charge you that; I have charged it all 
along.

MR. SOUTHARD: As to the twenty-fifth request, you
refused that your Honor, I would like for your Honor to 

reread that request, I tried to state it in language that



SUPREME COURT 91
Appeal from Fairfield County

couldn’t be objectionable to the rules of law, that is cer­
tainly the test laid down in the law books, your Honor,— 

COURT: Well, that is telling them that certain things
happened, referring to these parties, or taking something 353 
for granted; I can’t do that for that is in reference to 
facts.

MR. SOUTHARD: No, sir; the only thing I mean by
that request is this, your Honor, that in determining,— 

COURT: It is a question for the jury to say whether
these parties returned or not, and what happened before 
they returned.

MR. SOUTHARD: The uncontradicted testimony is 364
that they were there before, and they did return.

COURT: “ Happening prior to the return of Jack
Jewett and Willie Worthy with J. Austin Scott, as well as 
those that happened at the immediate time.” You have 
to take everything into consideration, if you tell them 
that, and substitute everything, and every happening, and 
every circumstance, and every fact in consideration, to 
reach your conclusion. I am not going to amend it to those 
who came before and to those who came after, the cir­
cumstances of the case. I will leave it for you for consid­
eration, everything. The whole thing is for your consid­
eration, I can’t intimate anything as to the facts; I can’t 
say anything as to what occurred. I have tried to tell s66 
you what the law is and leave the facts to you. Now, gen­
tlemen, I have given you the charge, the only thing left 
for me is to instruct you as to the form of your verdict.

SOLICITOR: Your Honor, fin charging the third
element of self defense as to appearances, your Honor 
said: “or if any man,” I am satisfied that your Honor 
meant to say “ if any man of reasonable prudence.”

COURT: I refer to the man, not the highest man of
intelligence; not the bravest man; or take as the standard 
the men who do, or afraid to do it—should do. You take 
the ordinary fellow, the law is merciful, a man of very 
great caution might refuse to do things to his own hurt, 
you can see that very well; a man of bravery might make 
no preparation at all for his own safety; and for that 366 
reason the law takes the ordinary man. You take that 
standard and judge this man by that; by that standard in 
judging this man, using all of the evidence and facts, and



92 SUPREME COURT
The State vs. Jim Davis

circumstances and judging him by that. Award him 
what he is entitled to under the facts, that is, the ordinary 
man, the ordinary fellow is the standard we take in this 

967 court; now the reckless man, now you can’t take that, the 
reckless man, you take the man of ordinary intelligence 
and courage, that is the standard the law takes in all 
cases.

Now I come as to how you shall write your verdict;— 
not what you should write, but how; I have stated to you 
when I started my charge, and stated to you that you 
could find one of four verdicts. If you find from the con- 

36* sideration of the facts in this case the defendant guilty 
of murder, the simple word guilty will cover it,—sign 
your name as foreman, and write foreman under it.

If you conclude from extenuating circumstances in the 
case, that he is guilty of murder, but you think that there 
are extenuating circumstances in it, you can recommend 
him to the mercy o f the Court, then the form of your 
verdict will be Guilty, recommended to the mercy of the 
Court, and in that event he will suffer life imprisonment. 
If you write just the word guilty, it means that he will 
be electrocuted; if you conclude that it is not a case of 
murder, no malice in it, then the form of your verdict 
will be guilty of Manslaughter, and write your name and 

ss9 foreman under it, or if you conclude that he was acting in 
defense of his habitation, in expelling an intruder or tres­
passer, or to prevent him, from accomplishing forcible en­
try in his home, using all the force necessary, then your 
verdict,—or, if you have a reasonable doubt on the whole 
case, or if you conclude that his defense is made out, and 
that is entirely for you, then the form of your verdict will 
be, Not Guilty The words will be, Not Guilty. Now, 
Guilty,—Guilty, recommend to mercy of the Court, Guil­
ty of Manslaughter,—Not Guilty, one of four forms. Here 
is the indictment, take it. You see the place here, Ver­
dict,—write it there, and write your name above the 
word Foreman already printed.

WHEREUPON the jury retired. After deliberating 
360 about four hours, a verdict of GUILTY, with recommen­

dation to the Mercy of the Court, was returned. Where­
upon, immediately, and before the jury was discharged, 
Mr. Southard made the following motion:



SUPREME COURT 93

Appeal from Fairfield County
“ The defendant moves to set aside the verdict and grant 

a new trial, for the reason that the verdict is contrary to 
the law and the evidence.”

COURT: The motion is over-ruled. 361
Thereupon sentence was pronounced, by the presiding 

judge, whereby the defendant was sentenced to serve for 
the balance of his natural life in the State Penitentiary, 
or for a like period on the chain-gang of Fairfield County.

Proper, and due notice of intention to appeal to the 
Supreme Court was given and filed, and the defendant,
Jim Davis, does now appeal on the following exceptions:

EXCEPTION ONE: That His Honor erred in re- 362
fusing to change the venue to RICHLAND COUNTY, or 
to some other County of the Sixth Circuit, it being re­
spectfully submitted that the showing was full and com­
plete that in Fairfield County the defendant could not ob­
tain a fair and impartial trial, and that the ends of jus­
tice could not be attained, and that the convenience of the 
witnesses would be served by a change of venue.

EXCEPTION TWO: His Honor erred in permitting
Dr. Wallick to detail a conversation which he claimed he 
had with AUSTIN SCOTT, the deceased, and in receiving 
the same in testimony as a dying declaration, it being re­
spectfully submitted that the same in nowise met the test 
for the admission as a dying declaration, in that it was 368 
not made to appear that the death of the deceased was im­
minent at the time that the declaration was made, and 
that the deceased was so fully aware of death as to be 
without hope of recovery.

EXCEPTION THREE: His Honor erred in striking
out the answer of Sheriff MacFie that J Austin Scott 
bore a bad reputation for turbulence and violence amongst 
negroes in Fairfield County.

EXCEPTION FOUR: That His Honor erred in per­
mitting the witness Jack Jewett to testify over objection 
that he was married to Sarah Davis the daughter of the 
defendant, it being respectfully submitted that if they 
had gone through a marriage, that the records of the of­
fice of Judge of Probate was the best evidence.

EXCEPTION FIVE: That His Honor erred in per­
mitting the witness Willie Worthy to testify over objec­
tion that he had married Clara Davis, the daughter of the



94 SUPREME COURT
The State vs. Jim Davis

defendant, it being respectfully submitted that if they 
had gone through a marriage, that the records of the of­
fice of Judge of Probate was the best evidence.

EXCEPTION SIX: That His Honor erred in refus­
ing to allow the witness LINDLER to answer the follow­
ing question:

Q. The fact that a negro was in his house, and that 
Mr. Scott wanted to get the negroes to go, a negro stand­
ing in his own house,—whether he told him, or whether 
he didn’t tell him, would have made absolutely no differ- 
erence, would it, so far as keeping Mr. Scott out?”

It being respectfully submitted that the same was com­
petent, and was relevant, and went to the defense of the 
defendant.

EXCEPTION SEVEN: That His Honor erred in re­
fusing to direct a verdict of Not Guilty, at the close of 
The State’s case, and upon motion to do so, it being re­
spectfully submitted that at that time the defendant had 
brought himself within every element of self defense, and 
the defense of the members of his family, and in the de­
fense of his castle, and he was, as a matter of law, at that 
time, entitled to a directed verdict of Not Guilty.

EXCEPTION EIGHT: His Honor erred in refusing
to strike from the indictment the element of MURDER, 
and submit the case on the question of manslaughter and 
the defenses of the defendant, upon motion to do so, and 
that under all of the facts and circumstances, at most, 
if guilty of anything, he was guilty of only manslaughter.

EXCEPTION NINE: That His Honor erred in not
permitting the witness G. E. Martin to testify as to a 
communication and statements made to him by the de­
fendant Jim Davis immediately or shortly before the hom­
icide, and in holding that it was incompetent. The tes­
timony was competent as tending to show the state of 
mind of the defendant shortly before the homicide, and 
the absence of malice, and the same was so closely con­
nected with the homicide in time and circumstances as to 
be fairly regarded as a part of the res gestae.

EXCEPTION TEN: His Honor erred in not permit­
ting the defendant Jim Davis to testify and detail a con­
versation had between himself and G. E. Martin imme­
diately or shortly before the homicide, and in holding that



SUPREME COURT 95
Appeal from Fairfield County

the same was incompetent; such testimony was compe­
tent as tending to show the mental attitude or state of 
mind of the defendant, and clearly showed the absence of 
malice, and was so closely connected with the homicide 
in time and circumstance and the spontineuity with 
which the same was given rendered the same competent.

EXCEPTION ELEVEN: His Honor erred, in refus­
ing to direct a verdict of Not Guilty at the close of the 
whole case, and upon motion to so do, it being respect­
fully submitted that the only reasonable inference that 
could be drawn from the testimony was that the defend­
ant was acting in defense of himself, his members of his 
family, to keep the deceased from effecting a forcible en­
try into his dwelling, and to repel an unlawful invasion 
thereof, and to prevent the deceased from taking two of 
his children out of his home, and every element had been 
made out, and as a matter of law, defendant was at that 
time entitled to a verdict of Not Guilty.

EXCEPTION TWELVE: His Honor erred in refus­
ing to strike from the indictment the element of MUR­
DER, upon motion to do so, and if submitted at all, the 
case should have been submitted on the question of Man­
slaughter and the defenses of the defendant.

EXCEPTION THIRTEEN: His Honor erred in
charging the jury as follows:

“ Murder is the felonious killing of a human being with 
malice aforethought, either expressed or implied. There 
can be no such thing as murder without malice; it is the 
heart of murder; the sine qua non of murder is malice. 
There can be no such thing as murder without malide. 
And you notice the word ‘aforethought’, ‘malice afore­
thought’, that is it must have been thought of or deter­
mined on, the killing must have been thought of or de­
termined on before it occurred. It doesn’t mean that it 
took any time beforehand. If it is in the killing itself, 
the malice, it makes murder. If malice is in the killing 
itself, we say ‘aforethought’, that has reference to delib­
eration.”

The Judge committed error, it is submitted, and the 
charge was calculated to mislead the jury, because proof 
even of malice, in the killing itself, does not of itself ren­
der one guilty of murder, for, where there is legal excuse,



96 SUPREME COURT
The State vs. Jim Davis

extenuation, or legal justification, the homicide cannot be 
murder though it had been “thought of” , or “determined 
on” , or “ deliberated on” before it occurred; and malice 

,7S like every other element when the facts and circumstances 
of the case have been testified to, must be proved.

EXCEPTION FOURTEEN: His Honor erred, in
charging the jury as follows: “ There is not two kinds of 
malice. You know that. It is the same kind of malice, 
but the manner in which it is made to appear in the trial 
of a case, we say expressed or implied. To illustrate 
what expressed malice is, I said: ‘I am going to kill John 

S74 Doe’, go get me a pistol and go and kill him. There I have 
given the expression to the deliberation that was in my 
heart, and we call it expressed malice; it is the same kind 
of malice if I had said nothing about it. Suppose I shot 
John Doe without saying a word, wipe out a pistol, with­
out any reason or cause, shoot him to death, I didn’t ex­
press my malice there; I gave no utterance to it by word 
or deed, but, nothing else appearing, you would say, and 
every just man would say, “ that man killed that man with 
a wicked heart,” nothing else appearing, you couldn’t 
help but say otherwise that he killed him with a wicked 
heart. So, that is implied malice. Implied from the act 
itself, from the manner in which it was done. So you 
see, expressed and implied malice aforethought, is the 

375 wicked heart, for the killing at least.” That the said 
charge was erroneous, prejudicial, and calculated to mis­
lead the jury. The “wicked heart” , is not synonymous 
with “expressed and implied malice” . A man’s heart 
may be wicked, for the killing at least, and yet, he may 
be entitled to a verdict of not guilty; for, if he act in 
legal justification, extenuation, or excuse, the homicide 
will not be murder; the heart must not only be wicked, 
but depraved, devoid of all social duty and responsibility 
and fatally bent on doing mischief. Before there can 
be murder, the killing must be done with a criminal in­
tent which cannot be excused or justified; and for which 
there can be no extenuation before it can be murder.

S7« EXCEPTION FIFTEEN: His Honor erred in charg­
ing the jury in reference to malice: “ We couldn’t prove
it, we couldn’t show the expression of it, but there it is. 
That illustrates the difference between the expressed



SUPREME COURT 97
Appeal from Fairfield County

malice and the implied malice. Now, we talk about ex­
press malice, that is made to appear by a man’s words or 
deeds, as I say, said, and proof of it is brought forth by 
making preparation, it may be by word he may express 577 
his malice; he may go make preparation to express his 
malice, go lie in wait, watching for the man that comes 
along. His acts would express his malice, show his delib­
eration, his premeditation.” That said charge was erro­
neous, highly prejudicial, and calculated to mislead the 
jury. It being respectfully submitted that even though 
a man’s acts showed a deliberation to kill, and a pre­
meditation to kill,—yet, if the killing was done in self de- 878 
fense, or in the defense of a member of defendant’s fami­
ly, or to repel an unlawful invasion, or to expel an un­
lawful intrusion of his home, or to keep his children from 
being carried away, the same could not be murder, and 
when all of the facts and circumstances of a killing have 
been developed in a trial, malice, like every other element 
must be proved by the State.

EXCEPTION SIXTEEN: His Honor erred in charg­
ing the jury in reference to malice as follows: “ Buying
ammunition would express his malice; going for a gun 
would express his malice.” That the said charge was 
highly prejudicial, was erroneous, calculated to mislead 
the jury, and was in violation of the Constitution of South

879Carolina, being a statement about a fact of the case and 
the determination of the same,—made the Judge a par­
ticipant with the jury, and His Honor told the jury just 
what would be malice. Buying ammunition, and going 
for a gun would not be an expression of malice by a man, 
who procured the ammunition and the gun for the pur­
pose of defending himself, the members of his family, 
his castle, and repelling an unlawful intrusion in hid 
home, and preventing an unlawful invasion thereof.

EXCEPTION SEVENTEEN: His Honor erred, in
charging the jury, in reference to malice in not giving 
to the jury the law applicable to the facts and circum­
stances of the case; or stated differently, in not charging 
the law of the case, in reference to malice, in the light of 880 
the facts and circumstances developed on trial.

EXCEPTION EIGHTEEN: His Honor erred, in
charging the jury, in regard to appearances: “Now, a



98 SUPREME COURT
The State vs. Jim Davis

man can act upon appearances in striking another, that 
is, it appearing to him that he was about to be assaulted, 
he would be justified and excused to the extent of reduc-

381 ing the killing from murder to manslaughter, if it appear­
ed to him that he was being assaulted, etc.” That said 
charge was erroneous, prejudicial, and calculated to mis­
lead the jury. An appearance justifying a man in strik­
ing another, would not only reduce a killing from murder 
to manslaughter, but it would entitle a man to a verdict 
of not guilty, provided it appeared to a man that he, or 
someone whom he had the legal right and duty to defend

382 was about to be assaulted, to the extent that he believed 
that he was in danger of suffering serious bodily harm 
or imminent death, and that a man of ordinary reason 
and firmness would have come to the same conclusion.

EXCEPTION NINETEEN: His Honor erred in
charging the jury in references to appearances: “ Now,
you had the right to act upon the appearances there if 
you honestly believed that you were going to be shot by 
the man who drew the pistol on you; but you can’t be ex­
cused for acting upon appearances if no other man situat­
ed as you were at the time would have been justified in be­
lieving as you claimed to have believed.” That said 
charge was erroneous, highly prejudicial, calculated to 
mislead the jury, and imposed upon the defendant a

383 greater burden than that required by law, in that, it re­
quired the defendant in acting upon appearances to 
measure up to the belief of any other man, whereas the 
test is, did he believe it, and would a man of ordinary rea­
son and firmness have come to the same conclusion under 
the same or similar circumstances.

EXCEPTION TWENTY: His Honor erred in charg­
ing the jury as to appearances: “Now, keep that in mind 
in going through this entire case, that one principle in act­
ing upon appearances, because I will have to refer to that 
hereafter, and that is where a man can act upon appear­
ances only, if any other man situated as he was at the 
time, with all the circumstances, would be justified in

384 claiming, acting upon appearances, he would then be 
justified, if any other man would be justified, in acting 
upon appearances, then he would be justified.” That 
said charge was errpneous, highly prejudicial, and



SUPREME COURT 99
Appeal from Fairfield County

placed upon the defendant a greater burden than that re­
quired by law, in that His Honor required the defendant 
to meet the test of ‘any other man’ before he would have 
been justified in acting upon appearances, whereas, the 886 
test is, the belief that a man of ordinary reason and firm­
ness would have reached under the same or similar cir­
cumstances.

EXCEPTION TWENTY ONE: That His Honor err­
ed in charging the jury in reference to self defense;-"At 
the time of the killing, having established that he was 
without fault in bringing on the difficulty, by the greater 
weight of the evidence, he has to show that at the time of 386 
the shooting or killing, that at that time he was in danger 
of losing his life or suffering serious bodily harm from 
his antagonist.” That the same was prejudicial, erroneus, 
and placed upon the defendant a greater burden than that 
required by law, in that it required of the defendant that 
he show danger of losing his life; the test is, did he be­
lieve that he was in danger of suffering serious bodily 
harm or of imminent death.

EXCEPTION TWENTY TWO: His Honor erred in
charging the jury in reference to self d e f ens eAnd  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. He has got to establish that by the greater weight 387 
of the evidence.” That the charge was erroneous, preju­
dicial, and placed upon the defendant a greater burden 
than that required by law; if the defendant had proved 
that the necessity to strike or shoot was either real or ap­
parent, he had met the test.

EXCEPTION TWENTY THREE: His Honor erred
in charging the jury in reference to self defense :-“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, etc.”
That said charge was erroneus, prejudicial, and placed 
upon the defendant a greater burden than that required 388 
by law, in that it required of the defendant that he meas­
ure up to ‘any other man’.

EXCEPTION TWENTY-FOUR: His Honor erred in



100 SUPREME COURT
The State vs. Jim Davis

charging the jury in reference to self defense ;-“There is 
one place he can act upon appearances, but it must be the 
same as any other man, situated as he was, would have

389 been justified in believing that his life was at stake, or re­
ceiving serious bodily harm.” That said charge was erro­
neous, prejudicial, and placed upon the defendant a great­
er burden than that required by law, in that it required 
the defendant to meet the test of “any other man” , which 
was emphasized, whereas, the test required by law, is the 
man of ordinary firmness and prudence.

EXCEPTION TWENTY-FIVE: His Honor erred in
880 charging the jury, as to self defense: “ He has got to es­

tablish that by the preponderance of the evidence, and 
make it complete and full and give it all to you.” The 
charge was prejudicial to the defendant to single out 
the issue of self defense, and say to the jury that the law 
on that issue required of the defendant to “make it com­
plete and full and give it all to you” ; if it be preponderated 
the least in defendant’s favor, he was then entitled to a 
verdict of not guilty. Said charge placed a greater bur­
den on defendant than that required by law.

EXCEPTION TWENTY-SIX: His Honor erred, in
charging the jury in reference to self defense: “ He has
got to establish another thing, this is the last one,—ordi- 
narily, he has got to establish that there was no reason­
ably safe means of avoiding the difficulty in defense of 
his life or loss of limb, he could not get out it, he had to 
do it, 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 
defense.” That said charge was erroneous, highly preju­
dicial, and placed upon the defendant a greater burden 
than that required by law. One charged with homicide 
need not satisfy the jury that “he could not get out of it,” 
that “he had it to do” ,—to kill. If he shows that no other 
way of escape would have appeared to a man of ordinary 
prudence and firmness, he has met the test required by 
law.

892 EXCEPTION TWENTY-SEVEN: His Honor erred
in charging the jury in reference to the law of the castle: 
“ I said that a man was absolute master within his home, 
for protecting his home, and to keep intruders from com-



SUPREME COURT 101

Appeal from Fairfield County
ing in. But I don’t mean by that that a man because he 
is in his home, and another entering it, and for that, and 
that alone, the law would excuse him for shooting him to 
death, because there is such a thing as a licensee, you have 393 
got to settle this in this case, whether the intruder, if 
there was any intrusion in this case, was a licensee, or 
whether he was forcibly entering. That has got to be 
settled by you. I can’t tell you because it is a question 
of fact. Ordinarily, without anything appearing, if a 
man goes to another’s home, peaceably, orderly, without 
any show of violence, he is a licensee. If it is known to 
him that he is objectionable, if his entry is objectionable, 394 
he is a trespasser; but, if peaceably, he undertakes to 
go, until he has notice that his entry is disputed, he is a 
licensee, and the law of licensee in this case, that is for 
you to say, I can’t go further than to tell you what the 
law is.”

That said charge was erroneous, highly prejudicial, and 
calculated to mislead the jury, and was inapplicable to the 
facts and circumstances of the case, and said charge was 
not in anywise responsive and relevant to any issue of 
the case.

EXCEPTION TWENTY-EIGHT: His Honor erred
in charging the jury as to the castle, as follows: “Even
if he is invited into that home, and urged to come in, a ^  
guest in the home, and for cause or without cause, the 
owner of the home says, “You must get out” , he must 
go. But after that owner has invited him to get out he 
has got to peaceably try to get him out, take him by the 
arm and lead him towards the door or off the premises.
Now, if he is resisting, that applies to anybody who 
comes in and is given notice to get out, because he is a li­
censee up to the time if he has no notice that he is ob­
jectionable.” That said charge was erroneous, preju­
dicial, and calculated to mislead the jury, and was in­
applicable to the facts and circumstances of the case, 
and the same was not in anywise responsive to any issue 
of the case.

EXCEPTION TWENTY-NINE: His Honor erred in 396
charging the jury as to the law of the castle: “We
couldn’t transact business unless that was so, so you see 
that, because it is common sense. We couldn’t walk to



102 SUPREME COURT
The State vs. Jim Davis

the house of our friends if that wasn’t,—with our hands 
on the trigger, that wouldn’t do. And there is what is 
called implied consent of the owner of the house,—called 

397 implied consent. He has implied consent unless he has 
some notice to come and go.” That said charge was er­
roneous, prejudicial, and inapplicable to the facts and 
circumstances of the case, and was not in anywise re­
sponsive to the issues of the case.

EXCEPTION THIRTY: His Honor erred in charg­
ing the jury in reference to the law of the castle, as fol­
lows : “ Now, I said when he tells him to go he must go,

39g a licensee, or guest, or otherwise. Whenever the will 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 don’t go he can’t take 
hold of him and knock him on the head and batter 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.” That said 
charge was erroneous, highly prejudicial, and placed a 
greater burden than that required by law upon the de­
fendant ; if the entry is made or being made in such a way 
as evidences such a recklessness, and wilfulness, so that it 
will be attempted over the physical or verbal opposition 
of the occupant, no request to depart, or laying on of 
hands need as a legal requirement precede the act of 
ejectment, for the undesired and uninvited one knows as 
well without as with spoken words that his absence is 
desired.

EXCEPTION THIRTY-ONE: His Honor erred in
charging the jury as to the law of the castle, as follows: 
“ Now, if in using that force to expel him he takes his life 
by the use of that force to expel him, the law says that 
he will be excused for it. And if the intruder has a dead­
ly weapon, and he sees he has a deadly weapon, he can 

<°° use the same kind of force, and use more of it, and kill 
him with a deadly weapon, in using force the force to ex­
pel him, and he will be excused; but that is using force 
to expel him.” That said charge was erroneous, and



SUPREME COURT 103
Appeal from Fairfield County

prejudicial, and calculated to mislead the jury. A man 
has the right, being within his dwelling house, to use 
force either to expel an intruder or to keep an uninvited 
one out, whether he sees that the party has a deadly 401 
weapon or not,—provided the facts and circumstances 
would show that so much force was reasonably neces­
sary to so do, and if he kills, it is excusable.

EXCEPTION THIRTY-TWO: His Honor erred in
charging in regard to the castle: “ I don’t know of any 
law that in the very first instance, that excuses a man in 
his home for using a deadly weapon on another unless 
there is some circumstance that justifies it or excuses it, 402 
that is, if the other party, if the other party he can over­
come without the use of a deadly weapon. I am talking 
about other cases; I am not talking about this, just to 
illustrate the law. It is for you to take the facts and 
apply them to the law.” That said charge was erro­
neous, prejudicial, and calculated to mislead the jury, and 
was such a comment on the facts as to make the Judge a 
participant with the jury in the determination of the 
facts of the case, and placed upon the defendant a greater 
burden than that required by law.

EXCEPTION THIRTY-TWO: His Honor erred in
charging the jury as follows: “ Also, I want to instruct
you that a man has the right to defend his home from 
any intrusion for any purpose whatsoever at his own 
will, but he must do it according to law. If he is a li­
censee, he must warn him, and if he doesn’t act on the 
warning, not get out, then he must take hold of him and 
use force to put him off— eject him.” That thereby His 
Honor practically told the jury that a man must walk up 
to another and take hold of him before he would have the 
right to use force,—this charge placed a greater burden 
than that required by law.

EXCEPTION THIRTY-THREE: His Honor erred
in refusing to charge the first special request: “ I charge
you, Mr. Foreman and gentlemen of the jury, that you 
cannot return a verdict of Murder in this case. The only 
question which I am submitting to you is whether or not «4 
the defendant is guilty of manslaughter or not guilty, 
this is the only question to be determined, and because I 
am submitting this question to you, you are not to draw



104 SUPREME COURT
The State vs. Jim Davis

an inference that I am under the opinion that he is guilty 
of anything or not guilty.” It being respectfully submit­
ted that the request was a correct statement of the law

405 under all of the facts and circumstances, if the case was 
to be submitted at all, it should have been so submitted.

EXCEPTION THIRTY-FOUR: That His Honor
erred in refusing the third special request to charge: 
“ The only question in this case is whether or not the de­
fendant used more force than was necessary or appar­
ently necessary, and in the determination of this question 
you cannot imagine or speculate just how much force was

406 necessary or apparently necessary, but this is a fact 
which must be solved under the testimony, anil if the 
testimony is susceptible of only one honest inference, and 
that inference is in favor of the defendant, write a ver­
dict of Not Guilty; or, if it raises a reasonable doubt in 
your mind, then it is your bounden duty to write a ver­
dict of Not Guilty.”  It being respectfully submitted that 
said request to charge contained a correct statement of 
the law applicable to the case under the facts and circum­
stances, and if the case was submitted at all, that it 
should have been charged.

EXCEPTION THIRTY-FIVE: His Honor erred in
refusing to charge, upon request to do so, the following: 
“I charge you that if Austin Scott, the deceased, entered

407 onto the premises occupied by Jim Davis, without his 
permission, either expressed or implied, he was a tres­
passer. Not being an officer, armed with a legal process 
and in the discharge of his duty, his act in so entering 
onto the said premises was an unlawful act, and he would 
be there without any right or lawful authority whatso­
ever.” It is submitted that the request was a correct 
statement of the law under the facts and circumstances 
of the case. His Honor’s reason for refusing the request 
being: “ I am afraid, refers too specifically to the facts.”

EXCEPTION THIRTY-SIX: His Honor erred in re­
fusing to charge the jury the second paragraph of de­
fendant’s second request to charge, which was as follows:

408 “ The uncontradicted testimony in this case shows that 
the defendant Jim Davis at the instant that the shot was 
fired was standing in his dwelling house, or in the curti­
lage thereof, now, I charge you that it is the law of self



SUPREME COURT 105
Appeal from Fairfield County-

defense that one in his dwelling house or the curtilage 
thereof, in order to defend himself, or anyone else in the 
dwelling house or curtilage thereof does not have to re­
treat before firing and killing one who is about to effect 409 
an unlawful entry therein in such a manner as to en­
danger life or threaten serious bodily injury, but he may 
stand his ground and meet such force even to the extent 
of killing the person attempting to effect unlawful entry 
into his dwelling house, or seeking an unlawful entry 
therein, if he brings himself otherwise within the ordi­
nary rules of self defense.” That said request contained 
a correct statement of law applicable to the facts and 410 
circumstances of the case, and should have been charged.

EXCEPTION THIRTY-SEVEN: His Honor erred
in refusing to charge the second paragraph of the second 
request of defendant: “ Neither is such an occupant of
a dwelling house to be charged with legal fault in bring­
ing about the fatal difficulty so as to deprive himself of 
the right of self defense because of the use of force in the 
first instance, such as is reasonable and necessary or ap­
parently necessary to prevent an unlawful entry, or a 
forcible entry onto his curtilage, or into his dwelling.”
It is respectfully submitted that the request contained a 
correct statement of the law applicable to the case, under 
the facts and circumstances thereof, and should have been 411
charged.

EXCEPTION THIRTY-EIGHT: His Honor erred in
making remarks in reference to the fifth general request 
of the defendant to charge, which request was as fol­
lows : “ I charge you that a man is not only the master
of his dwelling, but, he is also the master of the curtilage, 
the out buildings and grounds surrounding the dwelling 
and used by the master of the house in connection with 
the dwelling; that the curtilage in South Carolina is two 
hundred yards from the dwelling house, two hundred 
yards in every direction, from one’s dwelling house, and 
used in connection therewith.” That His Honor’s re­
marks, “there ain’t no doubt but that is the law in ref­
erence to arson and burglary and such crimes” and other 412 
remarks used in connection with said charge were mis­
leading, confusing, beclouding, harmful, and prejudicial, 
and were not in anywise applicable to the case; the re-



106 SUPREME COURT
The State vs. Jim Davis

quest contained a correct proposition of law, and should 
have been charged as requested without the remarks that 
were made.

EXCEPTION THIRTY-NINE: His Honor erred in
refusing to charge defendant’s tenth request to charge, 
which was as follows: “ I charge you that where a man
is in his dwelling house, or within the curtilage thereof, 
and a trespasser comes onto the premises, either within 
the curtilage or the dwelling house, the master of the 
house is not required to retreat to prevent a difficulty, 
but he may press forward, availing himself, in addition 
to every legal right of self defense, which one would have 
on other parts of his premises, the right also to put the 
objectionable one out of the house, and out of the curti­
lage, and to use as much force as may be reasonably nec­
essary for the purpose, even to the extent of taking life. 
In other words, I charge you, that if Jim Davis was in 
his dwelling house, or within the curtilage thereof, the 
law did not require him to retreat to prevent a difficulty, 
but rather, if the deceased was there for the purpose of 
effecting a forcible entry into this man’s house, or into 
the curtilage thereof, or for taking out of this man’s 
house his daughter or daughters against his will, then, 
under the law he could press forward without waiting an 
instant, and use whatever force was necessary to put the 
objectionable one off of his premises even to the extent of 
killing him, and if the defendant used such force as was 
reasonably necessary or apparently necessary to prevent 
a forcible entry into his dwelling house, or into the curti­
lage thereof, or to keep his daughter or daughters from 
being taken away without his consent, then it is your 
duty to write a verdict of Not Guilty.” His Honor re­
fused to charge this request, because, he said, it bore on 
“the facts.” It is submitted, that the request was a cor­
rect statement of law, applicable to the facts and circum­
stances of the case, and defendant had the right to have 
had the same charged.

EXCEPTION FORTY: His Honor erred in refusing
defendant’s eleventh request to charge: “ I charge you,
Mr. Foreman and Gentlemen of the Jury, that if Jim Da­
vis had ordered out and away, or had directed the two 
men Jack Jewett and William Worthy not to return to



SUPREME COURT 107

Appeal from Fairfield County
his dwelling house and onto his curtilage of his dwelling 
house, and if Jack Jewett and Willie Worthy or either of 
them procured the deceased to go onto the premises of 
the defendant with them or either of them thereafter, or 417 
for them, and onto the curtilage, or dwelling house of 
the defendant, then in law the deceased would be acting 
for Jack Jewett and Willie Worthy, and an instruction to 
Jack Jewett and Willie Worthy, or to either of them by 
Jim Davis to stay away from his dwelling house, and not 
to return, or to such effect, was in law, an instruction to 
Austin Scott for him not to come onto the curtilage and 
to the dwelling house of Jim Davis, and if after receiving 418 
such instructions from Jim Davis, they did return, then 
he had the right to construe their acts and conduct most 
strongly against them, or either of them, their entry at 
that time being after NOTICE, or instructions not to 
come, would in law be regarded as a reckless, riotous, and 
violent entry, effected by over-coming the physical or ver­
bal opposition of the occupant, or head of the house, un­
der such circumstances as manifestly evidenced a purpose 
to endanger life or limb of an inmate of the house, or to 
commit a felony on them or on the habitation, and if a 
reasonably prudent man would come to such a conclusion 
and that it was apparently necessary to kill to prevent 
them or either of them from carrying into effect their 
design or plan of going into this man’s dwelling house or 
the curtilage thereof, the defendant would not be re­
quired to ask or demand their or his departure, as they 
would in such event be there ..'over his verbal opposition, 
and under such circumstances he would have the right 
to shoot and kill, and would be entitled to a verdict of 
Not Guilty at your hands.” That said proposition of 
law was correct, and applicable to the case, and should 
have been charged.

EXCEPTION FORTY-ONE: His Honor erred in re­
fusing to charge the twelfth request to charge: “ I
charge you, that if Jack Jewett and Willie Worthy, or 
either of them, having been instructed not to return to 
the dwelling and curtilage by Jim Davis, the defendant, 420 
and thereafter returned with Austin Scott for the pur­
pose of effecting a forcible entry into his dwelling house, 
or curtilage of Jim Davis, or for the purpose of taking the



108 SUPREME COURT
The State vs. Jim Davis

daughter or daughters of Jim Davis, that said entrance 
on his curtilage is not a peaceable and quiet entry, and if 
upon the return of the parties with Austin Scott, the said

421 Jim Davis was within his dwelling house, or within the 
curtilage thereof, he is not compelled to yield, he is in his 
refuge, and he may stand at bay, and he may turn on and 
kill all of them or either of them, if this be apparently 
necessary, nor, is he bound to escape from his house in 
order to avoid Jack Jewett, Willie Worthy, and Austin 
Scott; and if about to be attacked in one part of his 
house, he need not withdraw to another part, though he

422 may safely do so, and there find a secure asylum. This 
rule is of ancient origin, and indeed deeply rooted in the 
elemental instincts of humanity, and this rule is appli­
cable to all persons without regard to their moral charac­
ter or color, it having been held to apply to a prostitute 
living in a rented house, used for immoral purposes. Be­
ing in his castle the defendant may go forward and use 
whatever force may be reasonably necessary to eject all 
parties who are trespassers; and in this connection, I 
charge you that if Jim Davis had told these men Jack 
Jewett and Willie Worthy, or either of them not to re­
turn to his dwelling, and they did return, then in that 
event, they were trespassers, and if they were attempting 
to make a forcible entry into Jim Davis’ dwelling house

428 together with Austin Scott, the defendant may stand his 
ground, and even kill all oncomers, who are manifestly 
trying to effect a forcible entry into his dwelling house, 
or into the curtilage thereof; and if in so defending his 
dwelling or curtilage from a forcible entry, or in defending 
his daughter or daughters from being carried away from 
his house, one of the number is killed then it is your duty 
to write a verdict of not guilty.” Said request being a 
correct statement of law, applicable to the case under 
the facts and circumstances thereof,—it was error to re­
fuse to charge the same.

EXCEPTION FORTY-TWO: His Honor erred in re­
fusing to charge defendant’s fifteenth request, which was

iU as follows: “ Mr. Foreman and gentlemen of the jury, I
charge you that where one is a parent, or where he stands 
in the shoes of a parent, and his child is attacked or about 
to be attacked, the father has the right to strike in de-



SUPREME COURT 109

Appeal from Fairfield County
fense of such child or children, and if he slays his adver­
sary, who is about to make an attack which would en­
danger the life or lives of his child or children or place 
either of them in danger of receiving serious bodily harm, 425 
and if in striking or shooting in such defense of his child 
or children, such a homicide would be excusable, provid­
ed it would appear to a reasonably prudent man to be 
reasonably necessary to prevent such an attack, and in 
such event, the defendant would be entitled to a verdict 
of Not Guilty.” That the request contained a correct 
statement of the law applicable to the facts and circum­
stances of the case, and it was error to refuse to charge 426 
the same.

EXCEPTION FORTY-THREE: That His Honor
erred in refusing to charge the twenty-third request of 
defendant: “ I charge you that if you find from the
evidence that Jack Jewett, and Willie Worthy or either 
of them had been denied admission by the defendant Jim 
Davis into his house, or had been told nof to come back 
onto the curtilage of Jim Davis, then if they did return 
in disregard of said instructions, or orders, they would 
be guilty of trespass after notice, and any invasion of 
defendant’s curtilage by them after such notice would be 
held in law to be a wilful and highhanded invasion of de­
fendant’s rights, and wilful trespass.” That the request ^  
was a correct statement of the law, applicable to the case, 
under the facts and circumstances thereof, and the re­
fusal of His Honor constituted reversible error.

EXCEPTION FORTY-FOUR: His Honor erred in
refusing to charge defendant’s twenty-fifth request to 
charge, which was as follows: “ I charge you further that 
in the consideration of the defense of self defense, and in 
the defense of the habitation, that is the defense of the 
curtilage or dwelling or both, as I have outlined to you, 
you should take into consideration in determining what 
conclusions would be reached by a man of ordinary pru­
dence and firmness all of the circumstances happening 
prior to the return of Jack Jewett and Willie Worthy 
with J. Austin Scott as well as those that happened at 428 
the immediate time, and if you find from the evidence 
that either the defense of self defense or the de­
fense of the curtilage or the dwelling house, or both have



110 SUPREME COURT
The State vs. Jim Davis

been made out by the preponderance of the evidence, it 
is your duty to write a verdict of Not Guilty.” His Hon­
or refused the request on the ground that it was a charge 
on the facts of the case. That said request contained a 
correct statement of law, applicable to the facts and cir­
cumstances of the case, and should have been charged.

EXCEPTION FORTY-FIVE: His Honor erred in re­
fusing to charge defendant’s twenty-ninth request, which 
was as follows: “ I charge you that if any threats were
made to the defendant by either Jack Jewett or Willie 
Worthy at the time of their first departure, or afterwards 
or before, such as would cause a man of reasonable cour­
age and prudence apprehension, then under such circum­
stances the defendant would have the right to judge the 
conduct and attitude of the deceased and those acting in 
concert with him more harshly, and would have the right 
to act more quickly than under ordinary circumstances.”

That said request to charge contained a correct state­
ment of law, applicable to the facts and circumstances of 
the case, and His Honor’s refusal to charge constituted 
reversible error.

EXCEPTION FORTY-SIX: His Honor erred in re­
fusing to charge defendant’s thirtieth request to charge: 
“ I charge you further that the defendant in making up 
his mind as to what it was necessary to do, under the cir­
cumstances to protect his curtilage and dwelling house, 
or either of them from unlawful invasion, if you should 
find that the same was about to be unlawfully invaded, or 
in making up his mind as to what it was necessary for 
him to do for the safety of himself or any member of his 
family, not only had the right to take into consideration 
any threats that were made and anything which occurred 
at the time of the departure of Jack Jewett and Willie 
Worthy, but he had also, the right to take into considera­
tion the number of parties upon their return, their man­
ner, and their attitude, and if all that had occurred was 
sufficient to cause a man of ordinary prudence and cour­
age to believe himself in danger of bodily injury, or im­
mediate death, or any member of his family in danger 
of bodily harm or death, then he would have the right to 
act in self defense, and you would write a verdict of Not 
Guilty.” That said request contained a correct state-



SUPREME COURT 111
Appeal from Fairfield County

ment of the law, applicable to the facts and circumstances 
of the case, and His Honor’s refusal to charge as request­
ed was reversible error.

EXCEPTION FORTY-SEVEN: His Honor erred in
charging the jury as follows: “ If you conclude that it
is not a case of murder, no malice in it, then the form of 
your verdict will be guilty of manslaughter.” That said 
charge was erroneous, that even though malice was in it, 
still, if it was done under circumstances which justified 
it, or excused it, that the jury should write a verdict of 
Not Guilty.

EXCEPTION FORTY-EIGHT: His Honor erred in
charging the jury as follows: “ Or, if you conclude that
he was acting in defense of his habitation in expelling an 
intruder or trespasser, or to prevent him from accom­
plishing a forcible entry into his home, using only the 
force necessary, then your verdict.” That said charge 
was erroneous, prejudicial, and calculated to mislead the 
jury, in that His Honor restricted the defendant in his 
defense to the defense of the habitation or castle, and by 
said charge practically instructed the jury to disregard 
the defense of self defense.

EXCEPTION FORTY-NINE: His Honor erred in
charging the jury as follows: “Or, if you conclude that
he was acting in defense of his habitation in expelling 
an intruder or trespasser, or to prevent him from accom­
plishing forcible entry into his home, using only the force 
necessary, then your verdict” . That said charge was er­
roneous, highly prejudicial, in that it placed upon the 
defendant a greater burden than that required by law, in 
requiring him to show that he used only the force nec­
essary; the test being the force which was reasonably 
necessary or apparently necessary.

EXCEPTION FIFTY: His Honor erred in refusing
to set aside the verdict, and in not granting to the de­
fendant a new trial, said verdict being contradictory to 
the law and the evidence, and the same was in nowise 
responsive thereto.

EXCEPTION FIFTY-ONE: That on the whole, the
charge was confusing and was misleading and the jury 
could not get a correct idea of the law governing the case.



112 SUPREME COURT
The State vs. Jim Davis

RESPECTFULLY SUBMITTED,
L. G. SOUTHARD,

Attorney for A-ppellant.

AGREEMENT

We hereby agree that the requests to charge by the de­
fendant as quoted in the several exceptions were duly re­
quested, and that the same shall not be set forth, except 
in the exceptions, in order to conserve printing.

L. G. SOUTHARD,
Attorney for Appellant.
J. LYLES GLENN, JR.,
Solicitor, Attorney for The State.

I
TO: HONORABLE J. LYLES GLENN, JR., Solicitor: 

JIM DAVIS, the appellant, proposes the above as the 
TRANSCRIPT OF RECORD to be heard by THE SU­
PREME COURT.
26th of August, 1926.

L. G. SOUTHARD,
Appellant’s Attorney.

DUE and legal service of the proposed TRANSCRIPT 
of RECORD, wherein THE STATE is RESPONDENT 
and JIM DAVIS is APPELLANT, at CHESTER, 
SOUTH CAROLINA, the 28 day of October, A. D., 1926. 

J. LYLES GLENN, JR.,
Solicitor Sixth Judicial Circuit.

The foregoing is the case to be heard by THE SU­
PREME COURT.
28th October, 1926.

L. G. SOUTHARD,
Appellant’s Attorney.
J. LYLES GLENN, JR.,
Solicitor Sixth Judicial Circuit.