State v. Harvey, 16575

• Decision Date: 17 December 1951
• Docket Number: No. 16575,16575
• Citation: 68 S.E.2d 409,220 S.C. 506
• Parties: STATE v. HARVEY.
• Court: South Carolina Supreme Court

Page 409

68 S.E.2d 409

220 S.C. 506

STATE v. HARVEY.

No. 16575.

Supreme Court of South Carolina.

Dec. 17, 1951.

Basil W. Hall, Beaufort, Aaron Kravitch, Savannah, Ga., for appellant.

Randolph Murdaugh, Solicitor, Hampton, for respondent.

OXNER, Justice.

Upon an indictment charging him with the murder of Aubrey Godley on February 17, 1951, appellant was tried at the March, 1951, term of the Court of General Sessions of Beaufort County. He admitted the killing and interposed a plea of self-defense. The trial resulted in a verdict of guilty of murder and sentence of death by electrocution.

The first question which will be considered is whether the evidence was sufficient to support a conviction of murder. Appellant contends that the State failed to prove that the offense was committed with malice aforethought and that the highest degree of homicide shown by the evidence was that of manslaughter. The determination of this question necessitates a review of the testimony.

Appellant is a Negro, about forty years of age. He has resided in Beaufort County all his life with the exception of approximately three years during World War II when he was in the army. At the time of the homicide he was living on Ladies Island and attending a school located about eight miles away under the GI Bill of Rights.

The deceased, Aubrey Godley, was a White man about 29 years of age. During the late afternoon of February 16, 1951, Godley, Wilson Lee McAlhaney and Lonnie Godley gathered at the place of business of W. C. Swain. They purchased some liquor and later went on a pleasure ride in Swain's car, a four door automobile. They rode for several hours, talking and singing. During the evening they stopped at one or two places to get beer and finally went to Buckmeyer Beach. About midnight they decided to return home. At this time McAlhaney was driving, with Aubrey Godley on the front seat with him. Swain and Lonnie Godley were on the back seat. When they reached a point on Ladies Island about 200 yards from Lonnie Godley's house, the driver stopped the car on the side of the road. He cut off the ignition and turned on the parking lights. Swain, who is about 37 years of age and the only surviving witness, gave substantially the following version of what then occurred:

He did not know why the driver stopped. None of the occupants asked him to do so. He does not recall how long they had been parked before the homicide occurred. As they set there either talking or singing, Swain heard one of his companions on the front seat remark, 'who in the hell is that?'. This was the first Swain knew of anyone approaching. He looked up and saw a man walking along the right side of the car. When this man reached the right front window, he asked: 'What in the hell is all the racket about?'. Aubrey Godley replied, 'who in the hell wants to know?'. About this time McAlhaney, the driver, got out of the car and started walking toward the rear, followed by Lonnie Godley. Aubrey Godley then proceeded to get out and just as his feet hit the ground, two shots were fired. Aubrey Godley thereupon called to Swain, who was preparing to get out of the car, to 'lie down', Swain then slipped down in the seat. About this time Aubrey Godley dashed toward the front of the automobile. Three or four more shots were fired, after which there was silence. Shortly thereafter Swain got out of the car and found that his companion had been shot. He stopped a passing automobile for the purpose of notifying the sheriff and sending for an ambulance.

The sheriff and one of his deputies promptly answered the call. Upon arriving at the scene, they found McAlhaney lying dead near the right rear fender of the car. He had been shot through the heart. Aubrey Godley was found dead under the front part of the car with his legs protruding. He had been shot on the right side about six inches below the armpit. There was testimony tending to show that the bullet ranged upward and come out through his left check. Lonnie Godley was shot in the back of the head and was found by the sheriff about 150 yards from the scene of the homicide, to which point he apparently walked after being shot. He was removed to a hospital and died on the following day. All three men were shot with a .45 automatic pistol. Five shells were found scattered behind the right rear of the car and one shell about two feet from Aubrey Godley's legs. There is no evidence that any of the four men in the car had a pistol, knife or any other weapon.

Within about an hour after the homicide, appellant, whose home was near the scene of the shooting, was arrested and at daybreak removed to the State Penitentiary in Columbia. That afternoon he confessed that he had done the shooting.

It was the theory of the State, and there is substantial evidence tending to support it, that deceased, Aubrey Godley, was shot while trying to escape by crawling under the front of the car and after the other two men had been shot.

It is undisputed that appellant was seen with a .45 automatic pistol in his hand at several places on the night of the homicide, although there is no evidence that he undertook to assault anyone with it. He said that this pistol had been pawned to him about a month prior to the homicide and on the night in question he had taken it with him for the purpose of pawning it to someone in order to raise money for use until payday. He gave no satisfactory explanation as to why it was loaded.

Appellant, after stating that in returning home about midnight he saw a car parked along the side of the road about two hundred yards from his house, gave the following version of the occurrence:

'Mr. Kravitch: What was it they said? A. When I got about mid-ways of the car, one of them said, 'hey', I thought somebody knew me and why they were down there.

'Q. Did you know whether they were white or colored? A. No, sir, I figured somebody knew me, and they hailed me and the reason I figured they knew me, and I said, 'behold thy brother,' I walked up to get in the back of the car, and then three men fell out of the car, I stood watching them, and I still did not see they were white because it was in the night, and I got back up against the rear of the automobile, and where one of them walking up to me, and he said, 'you know where we can find * * *?' (words omitted show that the inquiry here made was for a Negro woman for immoral purposes), and I said, 'No, sir', I see it was white men then, and I said, 'the old girl was around here and they done run her away from around here', and he said he do not believe it. Then, he walked on up coming to me, and three around there at that time, and one said, 'Kill him,' and I did not know whether the other ones were back to the car, and I could not get around three of them, and I did not want to have any special trouble, and I just shot.

'Q. What did you do after the shooting? A. I ran across the field and went home * * *.'

On cross-examination, he testified in part as follows:

'Q. And as I understand as you were going by this car these boys were out there singing? A. I never heard them singing.

'Q. One of them got out of the car? A. Three of them got out of the car.

'Q. And one had to get out and the others did? A. Three got out. One came up to me who was a big fellow.

'Q. And the one that came up to you was a big fellow? A. yes, sir.

'Q. And the first thing they said, 'hey'? A. Yes, sir.

'Q. And you said, 'Behold thy Brother?' A. Yes, sir.

'Q. And the one that came down there was a big fellow? A. Yes, sir.

'Q. And he walked over to you and asked you about some * * *? (Negro woman for immoral purposes) A. What he said.

'Q. And then you said nothing like that around here. A. And then he hit me. He said, 'You are not telling the truth', and I said, 'I am telling the truth'. And then he hit me.

'Q. What did he hit you with? A. With his bare hand.

'Q. His bare hand? A. Yes, sir.

'Q. Did you tell your counsel on direct examination anything about him hitting you? A. If I did not, I meant to tell him. I do not believe I did and I forgot that.

'Q. What did the other two do? A. One of them said, 'Kill him,' and the other two were around there.

'Q. What did you do? A. I was backing and wheeling back from them, and then I pulled out the pistol and started shooting.'

It is proper to add that there was no evidence that appellant was drinking at the time of the homicide.

In the foregoing resume of the evidence, we have included that offered by appellant, although in determining the sufficiency of the evidence to sustain a conviction of murder, the evidence and the inferences which may reasonably be drawn therefrom must be viewed in the light most favorable to the State. State v. Francis, 152 S.C. 17, 149 S.E. 348, 70 A.L.R. 1133; State v. Epes, 209 S.C. 246, 39 S.E.2d 769.

Considering the evidence from the above viewpoint, does it warrant a conviction of murder? The statutory definition of that offense is, Section 1101 of [220 S.C. 514] the 1942 Code: 'Murder is the killing of any person with malice aforethought, either express or implied.' Malice is an essential ingredient of murder. Perhaps the definition of malice most often quoted is that stated in State v. Doig, 2 Rich. 179, which is as follows: 'In law, malice is a term of art, importing wickedness and excluding a just cause or excuse.' In State v. McDaniel, 68 S.C. 304, 47 S.E. 384, 387, the Court stated: 'An intentional homicide, without any excuse, is certainly murder.' While in order to prove murder it must be shown that the killing was done with 'malice aforethought', it is well established that malice need not exist for any particular length of time prior to the killing. State v. Cooper, 212 S.C. 61, 46 S.E.2d 545. In discussing the meaning of the phrase 'malice aforethought', we stated in State v. Judge, 208 S.C. 497, 38 S.E.2d 715, 719:

'In the comparatively recent case of State v. Heyward, 197 S.C. 371, 15 S.E.2d...