State v. Davis

• Court: South Carolina Supreme Court
• Writing for the Court: JONES, J.
• Citation: State v. Davis, 50 S.C. 405, 27 S.E. 905 (S.C. 1897)
• Decision Date: 24 September 1897
• Parties: STATE v. DAVIS.

27 S.E. 905

50 S.C. 405

STATE v. DAVIS.

Supreme Court of South Carolina

September 24, 1897

Appeal from general sessions circuit court of Fairfield county; R C. Watts, Judge.

Henry Davis was convicted of murder, and appeals. Reversed.

The following is the charge of the court:

"Mr Foreman and Gentlemen: The defendant, Henry Davis, here, is charged by the state of South Carolina with murder, the highest offense known to our law; that is, the state of South Carolina charges that the defendant here killed and murdered one Mr. Suber,--J. E. Suber.

It is for you now to inquire whether or not, under the testimony developed in this case, the defendant here did kill and murder the deceased, Suber. Your first inquiry will be whether or not Mr. Suber came to his death by any instrumentality of the defendant here. If you conclude that the defendant did kill Suber, then your next inquiry will be whether the defendant be guilty of murder or manslaughter, or not guilty of the offense as charged. You have heard the testimony in the case, and with that I have nothing to do. You are the sole judges of the facts. Now murder is the killing of any human being with malice aforethought, expressed or implied. There can be no murder without malice,--either express or implied malice. By express malice, we mean where the deed is done with a calm, sedate, and deliberate mind, and formed design, attended by external circumstances going to show that intention, such as lying in wait, old grudges, or old quarrels, or antecedent threats, or lying in ambush, and shooting a man. All that the law calls express malice. Now, there can be no murder, as I said before, without malice aforethought, either express or implied. It is not necessary, Mr. Foreman and gentlemen of the jury, that that malice shall exist in the heart of the party committing the deed for any length of time previous to it, but it has got to be there when, the deed is done. When the life of a person is taken, it must be taken with malice aforethought, express or implied; but it is not necessary, as I said before, for that malice to exist for any length of time previous to the killing. It can be there for a moment or period of time, however brief, but it has to be there when the deed is done. Now, the law will imply malice from any wanton, thoughtless, cruel, or depraved act; any act going to show an intention on the part of a party which shows a heart devoid of all social instincts, and fatally bent on mischief. If you, Mr. Foreman, were to throw a dynamite cartridge in that crowd out there, although you didn't intend to kill anyone, and it exploded and killed a lot of people, the law would imply malice from that act. Or, if you were to draw a pistol, and shoot into that crowd, although you didn't intend to kill anyone, nevertheless the law would imply malice from that act, because it would be a wanton, cruel, thoughtless, and depraved act on your part, and, that is what the law means by implied malice. Now, ordinarily, the law will presume malice from any killing; that is, where one man kills another, and that fact alone is established, the law will ordinarily presume malice from the killing. But where all the facts and circumstances are developed on the trial of the case, that presumption no longer arises. It becomes one of proof then, and must go to the jury, and they must decide from all the facts and circumstances of the case whether or not malice existed. It becomes a matter of fact, then, the same as any other fact in the case, and the state is bound to prove it, on the ground that he who affirms must prove. So, as I said before, where all the facts and circumstances attending a homicide are developed in the testimony, the presumption of malice no longer exists, but it becomes a matter of proof, and it is for the jury to say, from the facts and circumstances testified to in the case, whether or not it was done with malice aforethought, expressed or implied. Now, in this case, if you conclude from the testimony that the defendant killed the deceased, and that he killed him with malice aforethought, express or implied, then he is guilty of murder, and it is for you to say, by your verdict, whether he should hand or go to the penitentiary for life, because the law makes this distinction, and leaves it to the jury. Wherever the jury are satisfied that the defendant is guilty of murder, and say, 'We find the defendant guilty of murder,' the judge will have to impose the extreme penalty,--death; but if you conclude that the defendant is guilty of murder, but should not suffer the extreme penalty of the law, which is death, then you say: 'We find the defendant guilty of murder, and recommend him to the mercy of the court,' and then it is the duty of the judge, and incumbent upon him, to send him to the penitentiary for the term of his natural life. So, if the facts and circumstances in this case satisfy you, beyond a reasonable doubt, that the defendant here is guilty of murder,--that is, he took the life of the deceased with malice aforethought, express or implied,--then it is for you to say whether or not you convict him with or without a recommendation to mercy. If, however, gentlemen, you are not satisfied in this case that the defendant is guilty of murder, then your next inquiry will be whether or not the defendant is guilty of manslaughter. Now, manslaughter is the killing of any human being without malice, in sudden heat and passion, and upon sufficient legal provocation. Now, if the testimony here satisfies you that the defendant took the life of the deceased; that he did it without malice; that he did it in sudden heat and passion, upon sufficient legal provocation,--your verdict will be 'Guilty of manslaughter.' Now, as to what that legal provocation is, is sometimes very difficult to define. If the deceased here, by any acts on his part, did anything to the defendant which was calculated to highly inflame and exasperate a man, and his passion was aroused by any act, word, or deed of the deceased, and while he was in an angry and inflamed condition of mind, in sudden heat and passion, he took the life of the deceased, without malice, then he would be guilty of manslaughter. Now, if any one were to walk up to you on the street, Mr. Foreman, and slap you jaws, or do anything of that sort, and exasperate you, so that you were hardly responsible for what you did, and you got into a very exasperated and inflamed condition of mind, and, on the spur of the moment, in sudden heat and passion, pulled out a pistol, and killed that man, that, in the eye of the law, would be sufficient legal provocation. Or suppose some of you were married men, and a fellow were to walk up to you, and were to state that some female member of your family was a prostitute,--some decent, respectable, female member of your family was a prostitute,--and said it in such an angry, and rude, and insulting, and insinuating manner that you believed he meant exactly what he said, and it aroused your passions, and inflamed them, so that you took his life on the spur of the moment, not with malice, but in sudden heat and passion, then the law would say that was sufficient legal provocation, the jury might say that was sufficient legal provocation, and upon that find the defendant guilty of manslaughter. Now, the difference between murder and manslaughter is this: There can be no murder without malice aforethought, express or implied; and manslaughter is where a human being's life is taken by another in sudden heat and passion, without malice, upon sufficient legal provocation. Now, as I said before, if the testimony in the case--and you are the sole judges of that--satisfies you that the defendant here took the life of the deceased in sudden heat and passion, and upon sufficient legal provocation, and the deceased said anything, or did anything, to the defendant which was calculated to highly exasperate and inflame and arouse his passion, so that he had an uncontrollable impulse, and he was so inflamed with passion that he hardly knew what he was doing, and in that heat and passion he took the life of the deceased here, without malice, then you can find him guilty of manslaughter. Now, the next grade of homicide is self-defense. Any man has a right to defend himself under certain conditions. But two things are necessary, and one is, he must be without fault in bringing on the difficulty,--that is, Mr. Foreman, you can't go and engage a party in a quarrel, and get into a fight with him, and bring about yourself a state of affairs so that afterwards it is necessary for you to take the life of that party to save your own life, or to save your body from serious bodily harm; the law does not allow that. It says the party who claims self-defense must come into court with clean hands. You can't bring about a state of affairs on your own part which necessitates your taking the life of a human being, and then plead self-defense. The law says: 'No, you are not without fault in bringing on this difficulty; you brought it on yourself, and, after you got into this fight, it probably did become necessary to take the life of the man you brought on the row with, to save your life, or to save yourself from serious bodily harm. But you were not without fault in bringing on this difficulty, and you can't plead self-defense; you were not without fault.' So, as I said before, in matters of self-defense, the party pleading it must establish--First, that he was without fault in bringing on the difficulty; and, secondly, the facts and circumstances surrounding him must be such, in the opinion of the jury,--not his opinion, but in the opinion of the jury,--as to justify a man of ordinary reason and firmness that he was in actual immediate

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