Dissenting Opinion.

[ 106 S. C. the "act of another" was, at the outstart, wrongful to the "person." Until the statute, it was settled what acts to the person were wrongful, but not whether the remedy would persist. The statute provided that when those acts were wrongful in law, and the person against whom they were done should suffer death by them, yet nevertheless the right of action should not lie, but should persist. The injured person, in the very nature of the case, could not be compensated for his own death; but only for injuries to his life. In the event of his death the beneficiaries might sue if the "act of another" was the cause of the injury and death, and, therefore, had created a cause of action. The first feature of the statute, therefore, was dealing with a cause of action, which is the legal wrong of one person to another person; it was dealing with the wrong, and not with the reparation of a wrong; with an action, and not with limitations upon it or defenses to it. The third feature of the statute confirms this interpretation. It expressly declares that the right of action given by the first feature "shall not apply to any case where the person injured has, for such injury, brought action, which has proceeded to trial and final judgment before his or her death." That is equivalent to saying, it shall apply to all other cases. The third feature, which is section 3958, was not in the English statute. If it shall be necessary to inquire why a right may be concluded by a trial and judgment, and not by compromise and settlement, the instant case suggests an answer. A trial is:

"The examination before a competent tribunal according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such cause." Black's Law Dictionary.

Bouvier defines a trial to be:

"The examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue."

The trial involves publicity; the Courts are public, and must be. The deceased in the instant case was entitled in his lifetime to have a trial in open Court of how seriously if at all he was injured by the fault of the defendant; and the verdict of a jury and the judgment of a Court are alone made conclusive of those issues. That has not been had; but, in the place of it, there is offered a receipt by the deceased for $25, given three days after the injury, and a release of the wrongdoer from all further liability. A settlement under such circumstances offers the gravest opportunity and temptation for overreaching, and it was to prevent such a consummation that the statute was made. If a friendly compromise was desired—and it ought generally to be the Courts were open for a public inquiry about the issues involved, and a final judgment upon them. We are, therefore, clearly of the opinion that Price v. Railroad is not a right interpretation of the statute; and the only other issue is, ought it to be overruled or ought it to be followed? As before stated the issue decided in that case has not been hitherto followed here, though the case has been cited to ilustrate and explain issues nearly akin to it. The decision lays down no rule of property. It does not announce a rule of procedure. It does not affect the liberty of the citizen. There is no possibility that a contrary interpretation of the statute will affect settlements which may be made after the decision of the instant case. A serious wrong would be done to persons, in transactions hereafter to arise, to give to the statute a manifestly wrong interpretation. It is true that Price's case was decided 25 years ago, and the lawmaking power has not, in the following period, altered our interpretation of its statute. But the force and effect of that decision was largely dissipated by a subsequent decision in the same cause, which permitted the plaintiff to show that the release was invalid. 38 S. C. 199, 17 S. E. 732. It is better for the Court to change its former interpretation of a

A decision

statute than for the lawmaking power to do so. contrary to that in Price's case can only affect the instant case, and those cases within the statutory limit prescribed in section 3957.

Applying the rules laid down in State v. Aiken, 42 S. C. 228, 20 S. E. 221, 26 L. R. A. 345, I am of the opinion that Price v. Railroad ought to be overruled, and that the judgment below ought to be reversed.

MR. JUSTICE WATTS concurs in the dissenting opinion announced by MR. JUSTICE Gage.

9554

STATE v. SHUMAN.

(90 S. E. 596.)

1. CRIMINAL LAW - INSTRUCTIONS REASONABLE DOUBT. - The Court instructed that the jury "must be satisfied from the greater weight of the evidence that he (accused) did believe it (the homicide) was necessary. *** If he has proven all four of these propositions by the greater weight of the evidence, he has made good his plea of self-defense, and would be entitled to a verdict of not guilty. Then * * * you may consider whether or not the testimony adduced in support of this plea, when taken in connection with all the other evidence in this case, leaves you to entertain a reasonable doubt as to that, on the whole case; if it does so, write a verdict of not guilty. If it does not say so by your verdict. If you are satisfied beyond a reasonable doubt as to whether it should be murder or manslaughter, give him the benefit of that doubt and convict him of the lower offense, to wit, manslaughter." Held, the instruction was not erroneous as failing to charge that the defendant was entitled to the benefit of every reasonable doubt on every material point in the case, or as failing to charge the meaning of reasonable doubt.

2. CRIMINAL LAW-TRIAL-COERCING AGREEMENT BY JURY.-A Judge has no right to threaten or intimidate a jury or unduly detain them in order to affect their deliberations, and there should be nothing in his intercourse with the jury having the least appearance of duress or coercion.

3. CRIMINAL LAW-HARMLESS ERROR-COERCION OF VERDICT.-In a homicide trial, where the case was submitted at 5 o'clock and the jury were in the jury room until 11 o'clock next morning, when they

rendered a verdict of guilty, an instruction, concluding with a statement that if a jury had found a mistrial, the Court would have sent them to jail, and intimating that the Judge would keep the jury three weeks if they did not agree, was error, prejudicial to accused. 4. CRIMINAL LAW-VERDICT — IMPEACHING TESTIMONY OF JURORS.— Testimony of jurors in a criminal case as to whether the charge of the trial Court coerced them into finding a verdict is improper.

5. CRIMINAL LAW-APPEAL-FAILURE TO ARGUE-ExceptioNS.—Exceptions, not argued on a criminal appeal, will not be considered by the Supreme Court.

Before PRINCE, J., Hampton, February, 1916. Reversed.

J. K. Shuman, being convicted on manslaughter, appeals.

Defendant's first and second exceptions, referred to in the opinion, were as follows:

(1) Because his Honor, the presiding Judge, erred in charging the jury as follows: "And you must be satisfied from the greater weight of the evidence that he did believe that it was necessary; that there was open to him no other apparently reasonably safe way of saving himself. If he had proven all four of these propositions by the greater weight of the evidence, he has made good his plea of selfdefense, and would be entitled to a verdict of not guilty, not on the ground that the law justifies his conduct, but merely on the ground that the law excuses it. *** If the defendant has failed to prove his plea of self-defense by the greater weight of the evidence, then his defense has failed as an affirmative defense. Then, Mr. Foreman, you may consider whether or not the testimony adduced in support of this plea, when taken in connection with all the other evidence in this case, leaves you to entertain a reasonable doubt as to that, on the whole case; if it does so, write a verdict of not guilty. If it does not, say so by your verdict. If you are satisfied beyond a reasonable doubt that he is guilty of unlawful homicide, that means murder or manslaughter, but you cannot say beyond a reasonable doubt as to whether it

if

Argument of Counsel.

[ 106 S. C. should be murder or manslaughter, give him the benefit of that doubt and convict him of the lower offense, to wit, manslaughter,”—the error being: (a) That his Honor failed to charge the jury that the defendant was entitled to the benefit of every reasonable doubt on every material point in the case; (b) that his Honor failed to charge the jury the meaning of a reasonable doubt.

(2) That his Honor erred in charging as follows: "A verdict means an acquittal or a conviction. It doesn't mean a mistrial. Nobody but I can order a mistrial, and you will stay in the jury room until you have agreed on a verdict, or until I order a mistrial. Don't come out here like some jury has done in this State and say, 'We, the jury, find a mistrial.' That is enough to have been pulled off on some other Judge. It has never been pulled off on me. If it had, there would have been 12 men sent to jail. I think you have too much intelligence to try that on me. Now, two constables will have charge of the door, and when you have agreed on a verdict, make it known, and if it is this side of 11 o'clock, you may send after me, but if after 11 wait till tomorrow morning. I won't starve you into a verdict. I will tell you that. You need not be in a hurry. I am going to be here three weeeks. Maybe you would like to stay with me. All right. So, don't hurry on my account. I don't want to take any train early tomorrow, or Saturday, nor Monday, nor next week. If you want to stay with me, stay with me; I would like to have you"-the error being coercion of the jury to the prejudice of the defendant.

Messrs. B. R. Hiers and Geo. Warren, for appellant, cite: As to first exception: 93 S. C. 515. As to the second: 81 Ala. 335; 1 So. 108; 24 S. E. 47; 1 Bailey 653; 128 Ala. 518; 15 Colo. App. 268; 62 Pac. 368.

Mr. Solicitor Gunter and Mr. J. W. Vincent, for respond

ent.