State v. Levelle

• Citation: 13 S.E. 319,34 S.C. 120
• Parties: State v. Levelle.
• Decision Date: 17 June 1891
• Court: United States State Supreme Court of South Carolina

13 S.E. 319

34 S.C. 120

State

v.Levelle.

Supreme Court of South Carolina.

June 17, 1891.

Homicide—Malice—Provocation — Suicide—Instructions.

1. On an indictment for murder it is not error to charge that the law infers malice from the unlawful use of a deadly weapon resulting in death.

2. No words, however opprobrious, furnish sufficient provocation to reduce a killing with a deadly weapon from murder to manslaughter.

8. Nor is it error to charge that suicide is an unlawful act, and that when one, in attempting to commit suicide, takes the life of another, that is murder.

Appeal from common pleas circuit court of Charleston county; Aldkich, Judge.

Clement S. Bissell, for appellant.

W. St. Julien Jervey, for the State.

McIver, J. The defendant was indicted for and convicted of the murder of his wife, and, judgment having been entered on the verdict, he appeals upon the following grounds: "(1) Because his honor erred in charging the jury that ' malice will also be inferred from the use of a deadly weapon;' and that intent and malice are one and the same thing, when there is no presumption or inference of law, unless it is a natural and reasonable presumption from the facts proved. (2) Because the charge of his honor 'that no words, however cruel, and the man, no matter how great the heat and passion may be, who slays his fellow-man upon no other provocation than mere words, is guilty of murder, ' is not in accordance with the modern doctrine of our law, was not applicable to the case, and was very misleading to the jury. (3) Because his honor erred in charging the jury that every death that results from the unlawful act of another is murder. (4) Because the charge of his honor was otherwise contrary to law." The charge of Judge Aldhich, before whom the prisoner was tried, is set out in the "case, " and should be incorporated in the report of this case. We will therefore proceed to consider the several grounds of appeal in their order as stated, only referring to such portions of the charge as will be necessary for a proper understanding of the questions raised and considered. . The first ground presents two questions: (1) Whether there was any error in saying to the jury that "malice will be inferred from the use of a deadly weapon." (2) Whether intent and malice are one and the same thing, provided it shall first appear that the judge so instructed the jury. As to the first question, it will be observed that the words then quoted were not used by the circuit judge, but are taken from the language of the solicitor's ninth request, to which the judge responded in these words: "That is a presumption or rule, not so much of law as of common sense. Ordinarily, if a man, in his senses, uses a deadly weapon in a way calculated to do great harm to another person, the law and common sense says that he intended the result which his act brought about." The rule is well settled that every sane man is presumed to intend the ordinary and probable consequences of any act which he purposely does, and this rule is applied even in capital cases. 3 Greenl. Ev. §§ 13, 14. This is plainly what the judge meant by the language he used, and therefore there was no error in this respect. But, even if it be assumed that the judge must be regarded as adopting the language used in the solicitor's ninth request, quoted above, we still think there was no error. In 2 Bish.Crim. Law, § 680, it is said: "As general doctrine, subject, we shall see, to some qualification, the malice of murder is conclusively inferred from the unlawful use of a deadly weapon, resulting in death." And to the same effect, see 3 Greenl. Ev. §§ 145, 147. This doctrine has also been recognized in this state. See State v. Tooliey, 2 Rice, Dig. 105; State v. Ferguson, 2 Hill, (S. C.) 619; State v. Smith, 2 Strob. 77. It is true that the inference of malice drawn from the use of a deadly weapon may be rebutted by testimony, but, in the absence of any such testimony, malice may be and is inferred from the use of a deadly weapon causing death. The second inquiry arising under the first ground of appeal is as to the identity of intent with malice. But we do not find anything in the charge of the judge which warrants the idea that any such instruction was given to the jury. The jury were instructed that, if the act which produced death be attended with such circumstances as indicate a wicked, depraved, and malignant spirit, the law will imply malice, without reference to what was passing in the prisoner's mind at the time, and this was good law, as it was taken, word for word, from the opinion of the court in State v. Smith, supra.

The second ground of appeal likewise presents three inquiries: (1) Whether provocation by words only will be sufficient to reduce a killing from murder to manslaughter; (2) whether the language complained of in this ground was applicable to the case; (3) whether it was misleading to the jury. We will first consider the last two questions, which are really one, for we suppose that the language objected to as misleading is thought to be so because not applicable to the case as made by the testimony. But as none of the testimony is incorporated in the case, ' and the record does not furnish us with even a general outline of the circumstances attending this deplorable tragedy, it is impossible for us to say that these remarks were either inapplicable to the case made or calculated to mislead the jury. On the contrary, we are bound to assume that they were applicable, as we cannot suppose that the circuit judge, in instructing the jury as to their duties in so grave a case, would allow himself to indulge in general observations that had no application to the case, and might, therefore, tend to distract the minds of the jury from the real issues they were to pass upon. Turning, then, to the first inquiry, it will be observed that the judge, after explaining to the jury the difference between murder and manslaughter, used the language objected to, probably for the purpose of disabusing their minds of what seems to be a popular impression, that, where the killing is done in sudden heat and passion, the crime will be manslaughter, and not murder, without reference to the provocation received. It was then very natural for him to go on and explain the nature of such provocation as would or would not be sufficient to reduce the killing from murder to manslaughter. It was in this connection that the jury were instructed, correctly as we think, that provocation by words only, no matter how opprobrious, would not be sufficient. That this has been...