1. HOMICIDE-DEFENDANT HAS BURDEN OF PROVING APPARENT NECESSITY FOR KILLING IN SELF-FEFENSE. The law imposes on one who killed another the burden of proving, not that the necessity did in fact exist, but that the circumstances were such as to warrant a man of ordinary reason and courage in concluding that it did exist, and that he did in fact so believe.

2. CRIMINAL LAW-INSTRUCTION CN SELF-DEFENSE NOT MISLEADING.— Part of instruction on self-defense, "If he has shown that, he is required to go further and show by the same measure of proof that the necessity did then and there exist for him to take the life of the deceased," held not misleading or erroneous, when considered in connection with the remainder of the instruction.

Before SEASE, J., Darlington, Fall term, 1918. Affirmed. Bud Gandy was convicted of manslaughter, and appeals. Exceptions of Appellant. It is respectfully submitted that his Honor, the presiding Judge, committed error in his charge to the jury in defining the rule of self-defense, which was one of the defenses of the defendant when he used the following language: "If he has shown that, he is required to go further and show by the same measure of proof that the necessity did then and there exist for him to take the life of the deceased."

In that this charge to the jury placed a burden on the defendant greater than the law requires, in that it required the defendant not only to show that he was free from fault in bringing on the difficulty and to show by the preponderance of the testimony that any man of ordinary prudence and courage would have been warranted in coming to the conclusion that the necessity did then and there exist to take life to save himself from serious bodily harm or from losing his own life, but also to require the defendant to show that the necessity did then and there exist for him to take the

Opinion of the Court.

[113 S. C. life of the deceased. On the ground that said charge is erroneous, in that it is unsupported and contrary to the rule of law of self-defense in this State in placing upon the defendant the additional burden of proving that the necessity did then and there exist.

Mr. E. C. Dennis, for appellant, cites: As to the law of self-defense: 3 L. R. A. (N. S.) 543; 13 S. C. 464; 29 S. C. 201; 13 R. C. L. 818.

Mr. Solicitor J. Monroe Spears, for the State (oral argument).

December 22, 1919.

The opinion of the Court was delivered by MR. JUSTICE HYDRICK.

On indictment for murder, defendant set up self-defense, and was convicted of manslaughter.

In declaring the law of self-defense to the jury, after saying that defendant must prove that he was without fault in bringing on the difficulty, the Court continued:

"If he has shown that by the preponderance of the testimony, he must go further and show that any man of ordinary prudence and courage would have been warranted in coming to the conclusion that the necessity did then and there exist to take life, to save himself from serious bodily harm, or from losing his own life. If he has shown that, he is required to go further and show by the same measure of proof that the necessity did then and there exist for him to take the life of the deceased. A man may act, however, from appearance, and if it turns out, if the appearances are such that a man of ordinary courage, firmness, and prudence would have been justified in coming to the conclusion that the necessity did then and there exist to strike to save himself from serious bodily harm or death that would be suf

ficient, although it turned out afterwards that there was no actual danger present, and that the necessity to strike did not exist."

Exception is taken to the words italicized, on the ground that the Court thereby imposed upon defendant a greater burden than the law required. The law imposes on a

defendant the burden of proving, not that the neces1 sity did in fact exist, but that the circumstances were such as to warrant a man of ordinary reason and courage in concluding that it did exist, and that defendant himself did in fact so believe, and no doubt that is really what the Court intended to say.

Standing alone, the instruction complained of would be erroneous; but when it is read in connection with the preceding and following sentences, we are satisfied the jury

were not misled, especially when it is considered in 2 connection with what immediately follows it, in

which the jury were told that defendant had the right to act upon appearances, and if they were such that a man of ordinary prudence and courage would have been justified in coming to the conclusion that the necessity did exist, that was sufficient, although it afterwards turned out that it did not in fact exist, which shows that defendant was not required to prove the necessity did in fact exist, but only that it appeared to exist.

Judgment affirmed.

1. CRIMINAL LAW-APPEAL DISMISSED WHERE NO ARGUMENT.-Where an accused, convicted of crime, has not filed an argument, his appeal will be dismissed.

2. CRIMINAL LAW-QUSETION OF FACT NOT REVIEWABLE.-The Supreme Court has no jurisdiction to pass upon questions of fact.

Before SHIPP, J., Lexington, Fall term, 1919. Appeal dismissed.

Proceedings between the State and B. R. Lloyd, and from the judgment, Lloyd appeals.

Mr. Barnard B. Evans, for appellant.

Mr. Geo. B. Timmerman, Solicitor, for the State.

December 22, 1919.

The opinion of the Court was delivered by MR. JUSTICE FRASER.

1

This appeal is dismissed for two reasons:

1. The appellant has not filed an argument.

2. The only questions raised are questions of fact,

2 and this Court has no jurisdiction to pass upon

them.

The appeal is dismissed.

Rep.]

October Term, 1919.

10326

RHAME v. CITY OF SUMTER ET AL.

(101 S. E. 832.)

1. TRIAL-REFUSALTO CONSTRUE VERDICT ON MOTION FOR NEW TRIAL NOT ERROR.-Where a jury was allowed to disperse after returning a verdict for plaintiff and no objection was made to the form of the verdict until a motion for a new trial was made, the Court's refusal to then construe the verdict was not erroneous.

2. TRIAL VERDICT REQUIRES PAYMENT FROM EACH DEFENDANT SUED JOINTLY AND SEVERALLY.-Where two defendants had been sued jointly and severally, a verdict finding for plaintiff for a certain sum against the first defendant and also finding the same damages against the other defendant requires each defendant to pay the named sum. 3. TRIAL OBJECTIONS TO FORM OF VERDICT SHOULD BE MADE BEFORE JURY DISPERSES.-A defendant claiming that a verdict should be clarified and reformed should make the request before the jury is. discharged.

Before TOWNSEND, J., Sumter, Spring term, 1919. Affirmed.

Action by Annie Rhame, by her guardian ad litem, against the City of Sumter and Eugene Forshee. Judgment for plaintiff, and first named defendant appeals.

Mr. R. D. Epps, for appellant, submits: The City and Forshee were not joint wrongdoers, therefore the principle that joint wrongdoers cannot have contribution, the one from the other, does not apply: 111 S. C. 152. Forshee is primarily liable, and the city is entitled to indemnity over against Forshee for whatever it has to pay: 2 Black U. S. 418; 40 L. R. A. (N. S.) 1153; 99 Am. St. Rep. 879. We almit that in a case of joint trespass, the jury may apportion the verdict under proper allegations, evidence and instructions: 1 Bay 11; 1 Bay 15; 1 Brevard 503. Some authorities hold that where the jury attempt to apportion the verdict, simply assessing damages against each defendant, without first finding a general verdict for the plaintiff, the plaintiff can select the best verdict and enter it against all: 9 Ga.