pany afterwards became the owner of the lands covered by grant No. 3,084 by virtue of deeds from H. P. Wyman et al., the plaintiffs in said action in the federal court. Defendant Henry Stewart introduced the record in the case of Henry Stewart, Sr., under whom he claimed, against A. J. Calloway, James Evett et al., showing a judgment at Spring term, 1899, of Macon superior court, in which it was declared and adjudged, upon issues answered by a jury, that the plaintiff in that case was the owner and entitled to the possession of the land covered by grant No. 3,625, lying on Brush and Skittie's creeks in said county, giving its metes and bounds. The following agreement was made in the case: As the court was beginning its charge to the jury in order to simplify the issue before them, it was agreed between all the parties in court that if his honor should be of the opinion that the grant to Ingram, Keener, and Elias, or the conveyances thereunder, or that the decree in the superior court in the case of Henry Stewart, Sr., v. A. J. Calloway, James Evitt et al., heirs at law of D. M. Evitt, or either of them, constituted color of title, then that the possession of Henry Stewart, Sr., and the defendants Cassie and Henry Stewart was adverse and sufficient to ripen title, and that the court should so charge the jury, and the first issue should be answered, "Yes," but that if the court should be of the opinion that said records, nor either of them, did constitute color of title, he should so charge the jury, and thereupon the court, being of the opinion that said records nor either of them did constitute color of title, charged the jury that the said defendants Henry Stewart and Cassie Stewart had offered a paper writing covering the lands in dispute which the court holds constitutes color of title, and had offered evidence showing possession sufficient to ripen the title, and that if they believed the evidence they should answer the first issue "Yes." The jury returned the following verdict: "(1) Did the defendants Henry Stewart and Cassie Stewart convey a good title to plaintiff's intestate under the deeds set up in this action? Answer: Yes. "(2) If not, what sum is the plaintiff entitled to recover from the defendants Henry Stewart and Cassie Stewart? No answer." Judgment was entered upon the verdict, and plaintiff and the Macon County Lumber Company appealed. Bourne, Parker & Morrison and Z. V. Weaver, all of Asheville, and Johnston & Horn, of Franklin, for appellants. J. F. Ray, R. D. Sisk, G. L. Jones, and Robinson & Benbow, all of Franklin, for appellee Stewart. WALKER, J. The agreement of the parties, which is copied in the statement, great charge that the court held, and so instructed the jury, that the judgment or decree in the case of Stewart v. Calloway, Evitt, and others was color of title, and, as the appellants had admitted the adverse possession necessary to ripen this color into a good title, they would, if they believed the evidence, answer the first issue "Yes." So the decision of the case turns mainly upon the correctness of this ruling as to color of title, and this is necessarily so, because the parties have, by their solemn agreement, declared that it shall be so. In the brief of appellant's counsel, it is also admitted to be so by this statement: "The Stewarts claimed this judgment was color of title as against appellants, and, as they had shown possession for more than seven years after the judgment, they had matured title; and the court so held, and charged the jury to that effect." Counsel for appellants contend that there is no evidence as to what lands were in controversy between the parties in that case, and that the judgment did not pass any title to Stewart, and therefore it is not sufficient color of title. But we think otherwise. It clearly appears that the title to several tracts of land was litigated in the suit, and that it was finally adjudged that Stewart was the owner of the land covered by grant No. 3,625, and the decree, by its terms, had the force and effect in law either of confirming or of vesting the title to that tract, as between the parties to the action, in Stewart, who was plaintiff in the action. If the defendants had any title or interest in that tract, they lost it by the decree, and it became vested in their adversary, Henry Stewart, Sr., and was transferred to him by force of the judgment, and they were forever afterwards estopped from claiming any interest in the land as against him. [1] Color of title has been variously defined by the courts of this country. It was early held to be any writing which on its face professes to pass a title, but which it fails to do, either from want of title in the person making it, or from the defective mode of conveyance employed; but it must not be so obviously defective as not to mislead a person of ordinary capacity but not skilled in the law. McConnell v. McConnell, 64 N. C. 342; Tate v. Southard, 10 N. C. 119, 14 Am. Dec. 578; Dobson v. Murphy, 18 N. C. 586. The courts have generally concurred in defining it to be that which in appearance is title, but which in reality is not. Wright v. Mattison, 18 How. (U. S.) 56, 15 L. Ed. 280; Jackson v. Frost, 5 Cow. (N. Y.) 346; Baker v. Swan, 32 Md. 355; La Frombois v. Jackson, 8 Cow. (N. Y.) 589, 18 Am. Dec. 463; Hall v. Law, 102 U. S. 466, 26 L. Ed. 217. The doctrine is said to have originated in the necessity for showing good faith in entering upon the land, the law not permitting a person to be ousted who had settled his, and after holding it adversely for seven | defined the claim of the parties to their reyears (Grant v. Winborne, 3 N. C. [2 Hayw.] spective shares. 56); but it was subsequently held that whether the writing was good color of title did not depend upon his good faith, for, even if he knew the land belonged to another person than his grantor, it would still be color. Reddick v. Leggat, 7 N. C. 539; Rogers v. Mabe, 15 N. C. 180; McConnell v. McConnell, supra. Finally the definition we have first given was adopted, and an unconstitutional act of the General Assembly was held to be within the meaning of the definition and to confer a good title where the necessary adverse possession had been held under it for the requisite time. Doe v. Newbern Academy, 9 N. C. 233. Color of title is necessary, not so much to show good faith, as to fix the extent or boundaries of the land to which title may be acquired by the continuous and adverse possession. Thurston v. University, 4 Lea (Tenn.) 520; Goodwin v. McCabe, 75 Cal. 584, 17 Pac. 705; Greenleaf v. Bartlett, 146 N. C. 495, 60 S. E. 419, 14 L. R. A. (N. S.) 660. The case last cited shows the liberal tendency of the courts upon this question, and we think follows the more reasonable principle. The subject is fully discussed in Sedgwick & Wait on Trial of Title to Land, § 761 et seq. Judgment or decrees may be color of title. 1 Cyc. 1100; Wardlaw v. McNeill, 106 Ga. 29, 31 S. E. 785; Patton v. Dixon, 105 Tenn. 97, 58 S. W. 300; Kimball v. Lohmas, 31 Cal. 157; Thurston v. University, supra; Wood v. Conrad, 2 S. D. 341, 50 N. W. 95; Reedy v. Camfield, 159 Ill. 254, 42 N. E. 833; 7 Enc. of U. S. Sup. Ct. Rep. p. 955; Defferback v. Hawke, 115 U. S. 407, 6 Sup. Ct. 95, 29 L. Ed. 423. We have held that a judgment in a proceeding for partition is color of title, although it does not divest or vest any title. The court said in Bynum v. Thompson, 25 N. C. at page 584, that: "Partition does not indeed constitute a title, except as against the parties to it. But it is color [2] In this case the judgment in the suit of Stewart against Calloway and others vested the title in Stewart as much so as if the other parties had been required to execute deeds to him for the land. It is a solemn adjudication after trial and investigation that the true title is in him, and it would be singular if we should hold that such a judgment is not color of title, when the deed of one having not even the pretense of a title would be. The judgment not only declares the title to be in Stewart, but also the right of possession. An adverse possession taken and continued for seven years under such a solemn determination should be as much protected as one under a void deed or a deed ineffectual to pass title. To rule otherwise would be to sacrifice the substance of the thing to the mere form or shadow. It appears that the judgment clearly adjudges Stewart's right and title, defines the extent of it with perfect accuracy, and declares him to be entitled to the possession of the land. It comes, therefore, within every reason or principle upon which the doctrine in respect to color of title is founded. The effect of the judgment was to pass any title in the land which the other parties may have had to Stewart, at least by estoppel. The case of Keener v. Goodson, 89 N. C. 273, does not militate against this view. There no question of title was involved; the allotment of the homestead having, as said by the court, "no other effect than simply to attach to his (homesteader's) existing estate a quality of exemption from sale under execution." We do not pass upon the merits of that decision, for the facts and the reasoning have no application to our case. Holding, as we do, that the judgment in the Calloway suit was color of title, it follows, under the terms of the stipulation made by counsel, that the ruling of the court was correct. No error. STATE v. WATSON. 14, 1913.) (94 S. C. 458) 1. WITNESSES (§ 405*)—IMPEACHMENT-COLLATERAL MATTER. of title as much as any of the defective instruments which have been thus deemed." And this case has been followed ever since. Smith v. Tew, 127 N. C. 299, 37 S. E. 330; Lindsay v. Beaman, 128 N. C. 189, 38 S. E. 811; Hill v. Lane, 149 N. C. 267, 62 S. E. (Supreme Court of South Carolina. May 1074. To the same effect are Johnson v. Britt's Heirs, 56 Tenn. (9 Heisk.) 756; Brind v. Gregory, 120 Cal. 640, 53 Pac. 25; Duncan v. Gibbs, 9 Tenn. (1 Yerg.) 256. The court said in Lindsay v. Beaman, supra, that title passes by deed from owner to purchaser, and to constitute color of title the deed must be registered (Austin v. Staten, 126 N. C. 783, 36 S. E. 338), while in partition proceedings between tenants in common no title passes; and in Johnson v. Britt's Heirs, supra, it was said that in such a proceeding there is no divestiture of title, but the decree merely A witness may not be discredited as to a collateral question. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1273, 1275; Dec. Dig. 8 405.*] 2. CRIMINAL LAW (§ 1147*)-DISCRETION ABUSE. turbed unless there is an abuse of discretion. A discretionary ruling will not be dis[Ed. Note. For other cases, see Criminal Law, Cent: Dig. §§ 3038, 3072, 3073; Dec. Dig. § 1147.*] 8. HOMICIDE (8 300*)-INSTRUCTIONS SELF-I could plead 'self-defense,' even though he DEFENSE. In a prosecution for homicide, a charge, that if accused fired the first shot then he cannot open his mouth and plead self-defense, is erroneous. [Ed. Note.-For other cases, see Homicide, Cent. Dig. 88 614, 616-620, 622-630; Dec. Dig. § 300.*] 4. HOMICIDE (§ 116*)-SELF-DEFENSE. To make out a case of self-defense it is necessary to show that the accused actually believed that he was in such immediate danger of losing his life or sustaining serious bodily harm that it was necessary to take the life of his assailant, and that the circumstances in which accused was placed were such as would justify such a belief in the mind of an ordinary person. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.] Appeal from Common Pleas Circuit Court of Kershaw County; G. W. Gage, Judge. O. H. Watson was convicted of homicide, and he appeals. Reversed, and cause remanded for new trial. The defendant's exceptions are as follows: "The defendant excepts to the ruling of his honor, George W. Gage, trial judge, and to his charge to the jury, upon the following grounds, to wit: "(1) Because his honor erred in refusing to allow the witness Bowers to testify as to the intimate sexual relations existing between the witnesses Ella Peach and Loma Peach, and the deceased, T. E. Gregory, and his brothers; such testimony having been offered to show interest or bias on the part of the said Ella Peach and Loma Peach. "(2) Because his honor erred in allowing the solicitor, in his argument to the jury, over the protest of defendant's counsel, to comment upon the fact that the witnesses as to the good reputation of the defendant were from a distance and that none had been produced from the near vicinity of his home, whereas, his honor had refused to allow the defendant to put other witnesses on the stand to testify as to his good reputation, although he had them present and ready from the near vicinity of his home; such facts having been called to his honor's attention at the time the protest was made; and notwithstanding that witness J. E. Baker was a close neighbor to defendant. "(3) Because his honor erred in charging the jury that the question of 'self-defense' might be summed up in the language of the school boy as 'who hit the first lick'; whereas, he should have charged the jury that the question of 'self-defense' depended upon who brought on the difficulty. fired the first shot, if said shot was fired because of a reasonable belief by defendant that he was in imminent danger of death or great bodily harm at the hands of deceased. "(5) Because his honor erred in charging the jury, without clear qualification, as follows, 'If the other man fired the first shot, if the peril was there imminent and the controversy was on, Watson had the right to shoot to save himself"; the reasonable inference from said charge being, in the absence of clear qualification, or explanation, that the defendant had no right to shoot unless the other man fired the first shot. "(6) Because his honor erred in charging that 'self-defense' is a matter of 'who hit the first lick,' or 'who fired the first shot'; said charge being an abstract proposition, without qualification, explanation, or illustration, and therefore incomplete and misleading. "(7) Because the whole charge of his honor on the question of 'self-defense' was incomplete, erroneous, inadequate, and misleading to the jury." Williams & Williams, of Lancaster, for apSmith, of Camden, and J. C. Massey, of Kerpellant. Solicitor Cobb, of Columbia, M. L. shaw, for the State. GARY, C. J. The defendant, O. H. Watson, was indicted for the murder of T. E. Gregory, and upon his trial the jury rendered a verdict of guilty with a recommendation to mercy, whereupon he was sentenced to imprisonment for a period of four years, and thereafter appealed upon exceptions which will be reported. [1] The case of State v. Hasty, '76 S. C. 105, 56 S. E. 669, shows that the first exception cannot be sustained. In that case the court, having under consideration a similar question, used the following language: "The presiding judge ruled that the testimony therein mentioned was irrelevant, and that it was not competent for the purpose of contradiction, as it related to a collateral question. This court is satisfied that the testimony was not only irrelevant, but that it was not admissible for the purpose of discrediting the witnesses for the state therein mentioned." [2] The second exception must be overruled, for the reason that it has not been made to appear that there was an abuse of discretion on the part of his honor the circuit judge. [3] The other exceptions assigning error, on the part of his honor the presiding judge, in regard to the law of self-defense, must be sustained. The presiding judge charged the jury that, if Watson fired the first shot, then he cannot open his mouth and plead self "(4) Because his honor erred in charging the jury, without clear qualification, that the question of 'self-defense' depended upon 'who fired the first shot,' and in charging said jury that, 'If Watson fired the first shot, then he cannot open his mouth and plead self-defense'; whereas, he should have charg- defense. ed the jury that the defendant, Watson, The testimony as to whether the defendant or the deceased provoked the difficulty was agreed statement which contains the followconflicting. ing facts: [4] The rule in regard to self-defense is thus stated in the case of State v. McGreer, 13 S. C. 464: "To make out a case of self-defense, two things are necessary: (1) The evidence should satisfy the jury that the accused actually believed that he was in such immediate danger of losing his life, or sustaining serious bodily harm, that it was necessary, for his own protection, to take the life of his assailant. (2) That the circumstances in which the accused was placed were such as would, in the opinion of the jury, justify such a belief in the mind of a person, possessed of ordinary firmness and reason. It is not a question which depends solely upon the belief which the accused may have entertained; but the question is what was his belief, and whether, under all the circumstances, the jury think he ought to have formed such belief." The charge of the presiding judge was not in harmony with the foregoing definition. It is the judgment of this court that the judgment of the circuit court be reversed, and that the case be remanded for a new trial. WOODS, HYDRICK, WATTS, and FRASER, JJ., concur. (94 S. C. 473) May GEER v. EARLE et al. (Supreme Court of South Carolina. 19, 1913.) MUNICIPAL CORPORATIONS (§ 181*)—OFFI CERS-VACANCY-TERM. Under Act Feb. 20, 1907 (25 St. at Large, p. 813), amending Act March 2, 1899 (23 St. at Large, p. 183), providing that, on the happening of a vacancy in office of police commissioners, who were elected for four years, the city council would appoint an incumbent "until the succeeding regular election," where a police commissioner resigned before two years had expired, and before a general election, which occurred at the twoyear period, and the vacancy was filled by the council, the appointee held only until the next succeeding election, and not for the unexpired term of four years. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 458-465; Dec. Dig. § 181.*] "To be officially reported." Petition in the Supreme Court by John M. Geer, Police Commissioner of the City of Greenville, against Wilton H. Earle and others constituting the City Executive Committee. Petition dismissed. McCullough, Martin & Blythe, of Greenville, for plaintiff. Wilton H. Earle, of Greenville, for respondents. GARY, C. J. This is an application to the court, in the exercise of its original jurisdiction, for a writ of certiorari, upon an 1. "By an act of the Legislature approved the 2d of March, 1899, it is provided 'that on or after the first Tuesday in April, 1889, there shall be established a board of police commissioners in the city of Greenville, consisting of five upright and intelligent citizens.'" 2. "By an amendment to said act approved February 20, 1907, the above-mentioned act of 1899 was amended, by striking out sections 2 and 5 thereof, and inserting in lieu thereof the following two provisions: "At the next regular election, for the purpose of electing a mayor and alderman for the city of Greenville, there shall be elected by the qualified electors thereof, five members of the board of police commissioners, two of whom shall be elected for two years, or until their successors shall be elected and qualified; at each subsequent regular city election, successors to the members of said board of police commissioners, whose terms have expired shall be elected for a term of four years. "All vacancies in said board caused by death, resignation, or otherwise, shall be filled by election by the city council of Greenville, until the succeeding regular election.'" 3. "Under the aforesaid act of 1907 five members of the board of police commissioners were elected, at the regular election in September, 1907, two of them for two years and three of them for four years, in accordance with the statute. At the next election in September, 1909, two members of said board, L. O. Cauble and W. L. Mauldin, were elected for a term of four years, in accordance with the statute, and their terms will expire during the present year, their successors having to be selected at the regular election September, 1913. At the election following the 1909 election, to wit, that election occurring in September, 1911, Frank Hammond, A. McBee, and J. D. Gilreath were elected members of the said board for a term of four years in accordance with the statute. Some time after his election, the said J. D. Gilreath resigned from the said board of police commissioners, and the said resignation was duly accepted and became effective, the vacancy being filled by the said city council of Greenville by the election of T. O. Lawton. That during the year 1913 the said T. O. Lawton, after serving some months, moved out of the city of Greenville, S. C., and resigned from the said board of police commissioners, his resignation being accepted and becoming duly effective, and the vacancy was filled by the said city council, by the election by the city council of Jno. M. Geer, plaintiff herein." 4. "The defendants, Wilton H. Earle, W. C. Beachman, H. J. Haynesworth, J. I. Westervelt, G. R. Busbee, B. M. Shuman, J. W. Goddard, R. F. Watson, A. K. Park, J. I. West, M. B. Leach, and J. A. McDaniel, are the members of and constitute, the City Dem-1 of the lawmakers is that this office should ocratic Executive Committee, under the laws be as continuous as possible. The contention of the state of South Carolina, governing of defendants recognizes this scheme, the primary elections, and under the constitution and rules of the Democratic party are charged with the duties of providing and arranging for city elections in the said city, of declaring what officers shall be voted for, and of providing ballots and arranging details for the election of such officers, including members of said board of police commissioners. And under our political system in the state of South Carolina, nomination at the Democratic primary election for such officers are practically equivalent to election." 5. "That the defendants as constituting the committee, as aforesaid, have ordered a Democratic primary election to be held for nominees of the Democratic party, for the general election for the city of Greenville, which will be held in September, 1913, of two members of the said board of police commissioners instead of three, two to succeed Messrs. Cauble and Mauldin, whose terms properly expire during the present year, and one to succeed plaintiff, who al leges that his term does not properly expire until the year 1915, and that the decision and determination of the said committee are in derogation of his right to the peaceful possession of his office, as a member of the said board of police commissioners, and contrary to the provisions of the law made and provided in such case. The members of the committee, admitting their doubt as to the proper construction of the law covering this point, have deemed it better to order this election of a successor to the said Jno. M. Geer, and have agreed that the matter be submitted without controversy to this court, to determine whether the said Jno. M. Geer is correct in his contention, and the said Geer herein claims the right to review the action of said committee by way of certiorari, and prays that said committee be enjoined from ordering, arranging, and providing for the election of his successor until the regular election for the year 1915." The only question in the case is whether the successor of Gilreath is to be elected at the next general election for city officers (which is to be held in September, 1913), or at the subsequent election, when his successor would have been elected if he had remained in office until that time. In other words, whether "succeeding regular election" has reference to the next regular election for the particular office in question. view being that upon the resignation of Gilreath, Lawton was elected only until the next general city election, and, he having resigned before this time, plaintiff was elected by the council only until the next general city election, and that in September, 1913, successors to the two commissioners who were elected in 1909 will be elected for a term of four years, and that the successor to plaintiff will have to be elected in September, 1913, for a term of two years. In other words, the successor to plaintiff to be elected by the people this year will be for the unexpired term of Gilreath, who was elected in 1911 for a term of four years. The matter of electing in 1913 two commissioners for four years and one for two years will merely be following the method adopted in 1907 under the amendatory act of 1907, when three were elected for four years and two for two years." The scheme of the statute was that the members of the board should be so classified as to produce rotation in office, and that the members should be elected by the people as far as possible; hence the provision that all vacancies caused by death, resignation, or otherwise should be filled by the city council, not for the unexpired term, but until the succeeding general election. In order that this scheme should be carried into effect, all minor provisions must be construed to be subordinate and subservient to the leading design. In the language of Mr. Justice Hudson in the case of Simpson v. Willard, 14 S. C. 191: "The supplying of vacancies in unexpired terms, is incidental to the preservation of an existing term of office, and hence must be so conducted and carried out as not to derange, but to preserve this fundamental and leading design of succession and regular rotation." By this construction alone, can full force and effect be given to the scheme contemplated by the statute. It is the judgment of this court that the plaintiff is not entitled to the relief for which he prays, and that the petition be dismissed. WOODS, HYDRICK, WATTS, and FRASER, JJ., concur. (94 S. C. 439) May STATE v. MCINTOSH et al (Supreme Court of South Carolina. 12, 1913.) The contention of the defendants' attorney, is thus stated in his argument: "The scheme of the General Assembly with reference to 1. CRIMINAL LAW (§ 393*)—COMPELLING AC police commissioner undoubtedly is that three should be elected by the people at one time for four years, and two years later two should be elected by the people for four years, and this probably because the desire CUSED TO BE A WITNESS AGAINST HIMSELF -SHOE TRACKS. To compel an accused to give up his shoes for the purpose of comparison with tracks made near the scene of the murder and the admission of the result of the comparison do not violate Const. art. 1, § 17, providing that |