Deadly Censorship: Murder, Honor, and Freedom of the Press

8. The Verdict

8. the verdict The last stage of the trial before jury deliberations was the charge to the jury by Judge Frank Gary.1 The question in the minds of many was whether the man the Tillmans fondly called “Cousin Frank” would favor the defendant in instructing the jury on the law. The Jury Charge: Self-Defense and the “Appearance” of Danger Judge Gary began by telling the jurors that he would instruct them only as to the law that they should apply to the facts. The jury had the exclusive prerogative to determine the facts. Prior to the adoption of the South Carolina Constitution of 1868, judges could charge juries on the facts in a case as well as on the law. But the 1868 Constitution forbade judges to charge on the facts, permitting them only to “declare the law” and to “state the testimony” in an impartial manner. The 1895 Constitution removed even the modest power to “state the testimony,” and in an even more pointed effort to ensure that the judges did not usurp the fact-determining role of juries, it mandated: “Judges shall not charge juries in respect to matters of fact, but shall declare the law.” Since the South Carolina Supreme Court was vigorous in policing this limitation on judicial authority, Gary was wise to adhere to it scrupulously.2 Exercising his duty to instruct the jury on the law, Judge Gary told them that in considering whether or not Tillman was guilty of the murder charge against him, they should know that there are three types of homicide: justifiable, excusable, and felonious. A justifiable homicide was one performed pursuant to Judge Frank Gary when he was serving in the United States Senate, 1908–9. Courtesy of the Library of Congress. .217.203.172] Project MUSE (2024-04-26 07:22 GMT) the verdict 203 a legal duty, such as an official executing someone sentenced to death by a court. An excusable homicide could be an accidental killing committed by a person performing a lawful act or a killing by someone defending himself.3 Felonious homicides were the only ones punishable by law. These were of two types: murder and manslaughter. As Gary explained, “Murder was defined by statute to be killing of [any person ] a human being with malice aforethought, either express or implied.”4 Gary said that “malice may be defined to be an evil spirit—a depraved and wicked spirit.”5 Expressed malice was “where one person kills another with a sedate, deliberate, meant and formed design, such formed design being evidenced by external circumstances, which discover the inward intention, such as lying in wait, antecedent menacing, threats, former grudges, and concerted schemes to do somebody harm.” He described manslaughter as the “killing of a human being in sudden heat and passion and upon sufficient legal provocation.” If a defendant was found guilty of the less serious offense of manslaughter rather than murder, it was one of the law’s “charities,” arising out of a “tender regard for the frailties of our nature” and recognizing that “under certain circumstances we are liable to be so far transported beyond ourselves that we act from passion and not from reason.” But if “sufficient time elapses” between the provocation and the killing for the passion to cool, the perpetrator will be guilty of murder.6 Gary told the jury that it should focus on the following questions: “Has N. G. Gonzales been killed? Did James H. Tillman kill him? If so under what circumstances was the killing done? Was the killing felonious, such as the law punishes for? If so, was it murder or manslaughter, or was the killing excusable ?”7 The pivotal point in the judge’s charge concerned the defendant’s plea of self-defense. Judge Gary told the jury that if the defendant was successful in proving that he acted in self-defense, then the killing was excusable, and the jury should bring in a verdict of not guilty. The key idea underlying self-defense, Gary said, was “necessity; that is, that it was necessary to take the life of a fellow man to save one’s own life or to avoid serious bodily harm.” To establish successfully that he acted in self-defense, the defendant had to prove “that he was without fault in bringing on the difficulty” between the parties; “that he believed at the time that he was in danger of receiving serious bodily harm, or losing his own life...