State v. Lowry
| Decision Date | 08 June 1993 |
| Docket Number | No. 23900,23900 |
| Citation | 434 S.E.2d 272,315 S.C. 396 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Eric Douglas LOWRY, Petitioner. . Heard |
David I. Bruck; and South Carolina Office of Appellate Defense, Columbia, for petitioner.
Attorney General T. Travis Medlock, Chief Deputy Atty. Gen., Donald J. Zelenka, Sr. Asst. Atty. Gen., Harold M. Coombs, Jr. and Asst. Atty. Gen., Rakale B. Smith, Columbia; and Sol. Larry F. Grant, of York, for respondent.
We granted petitioner Eric Douglas Lowry's petition for writ of certiorari to review the Court of Appeals' decision in State v. Lowry, --- S.C. ----, 424 S.E.2d 549 (Ct.App.1992). Lowry contends that the Court of Appeals erred in ruling that he was not entitled to a charge on voluntary manslaughter. We agree, and reverse and remand for a new trial.
In December 1990 Lowry and some friends were drinking beer outside a family-run grocery store in York. The decedent approached the group and began berating Lowry. The two men commenced arguing and "bumped chests," although no blows were exchanged. Lowry aimed a pistol at the decedent and pulled the trigger, but the pistol was unloaded. One of Lowry's companions broke up the fight, and the decedent went into the grocery store. Shortly thereafter, Lowry loaded a clip of ammunition into his pistol, fired a single shot into a sign located nearby, and followed decedent into the grocery store. The two men began arguing and shouting at each other again.
The facts are disputed as to the events that followed. According to the State's witnesses, Lowry challenged the decedent to "take it outside," to which the decedent replied, To show he had no weapon, the decedent spread his arms away from his body. Conversely, Lowry's witnesses testified that the decedent belittled Lowry by telling him, "You think you are a big man because you got a gun." The decedent then moved toward Lowry in a menacing fashion with his arms and hands outstretched toward Lowry as if to grab him.
It is uncontroverted that after the decedent raised his arms, Lowry shot him in the chest. After the decedent fell, Lowry cursed him and shot him again, this time in the head.
The trial judge instructed the jury as to murder and self-defense, but declined to charge the jury as to voluntary manslaughter. Lowry was found guilty of murder and sentenced to life in prison. The Court of Appeals affirmed.
Lowry asserts that the evidence supported a jury instruction regarding voluntary manslaughter. We agree.
Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation. State v. Davis, 278 S.C. 544, 298 S.E.2d 778 (1983). "Sudden heat of passion upon sufficient legal provocation" that mitigates a felonious killing to manslaughter must be such as would naturally disturb the sway of reason, and render the mind of an ordinary person incapable of cool reflection, and produce what, according to human experience, may be called "an uncontrollable impulse to do violence." State v. Gardner, 219 S.C. 97, 64 S.E.2d 130 (1951) (citing State v. Davis, 50 S.C. 405, 27 S.E. 905 (1897)). Where death is caused by use of a deadly weapon, words alone, however opprobrious, are not sufficient to constitute a legal provocation. Id. 219 N.C. at 104, 64 S.E.2d at 134. Rather, when death is caused by the use of a deadly weapon, the opprobrious words must be accompanied by the appearance of an assault--by some overt, threatening act--which could have produced the heat of passion. State v. Judge, 208 S.C. 497, 38 S.E.2d 715 (1946).
Here, there is testimony which, if believed, tends to show that the decedent and Lowry were in a heated argument and that the decedent was about to initiate a physical encounter when the shooting occurred. To...
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