State v. Maxey, 19833

• Decision Date: 04 June 1974
• Docket Number: No. 19833,19833
• Citation: 205 S.E.2d 841,262 S.C. 504
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Jacob L. MAXEY, Appellant.

Page 841

205 S.E.2d 841

262 S.C. 504

The STATE, Respondent, v. Jacob L. MAXEY, Appellant.

No. 19833.

Supreme Court of South Carolina.

June 4, 1974.

Arnold S. Goodstein, Goodstein & Jennings, Charleston, for appellant.

Sol. Robert B. Wallace, Charleston, for respondent.

LITTLEJOHN, Justice:

The defendant, Jacob L. Maxey, was tried upon an indictment charging him with the murder of James Davis. He was found guilty of murder by a jury and received the mandatory sentence of life imprisonment. He has appealed, contending that the trial judge erred in the following three particulars:

1. In charging the jury that malice is presumed from the use of a deadly weapon,

2. In refusing to allow the defendant's mother to testify as to what he told her subsequent to the shooting, and

3. In refusing to charge the jury the law of involuntary manslaughter.

On the evening of November 4, 1972, the defendant was one of about fifteen patrons in an establishment located in the Midland Park Section of Charleston County and known as John's Sweet Shop. At approximately 10:30 p.m. a fight erupted therein between Nathaniel Wade and Andrew Toomer. The defendant became involved, apparently in an attempt to break up the fight. At the urging of the proprietor of the sweet shop, all of the patrons, including Wade, Toomer, and the defendant, went outside the building.

The testimony varied as to whether, after everyone had congregated outside the sweet shop, the fight continued, whether only words were exchanged, or whether nothing at all actually preceded the shooting. All the witnesses agreed, however, that in a matter of munutes the defendant drew a pistol and fired three or four shots, killing Toomer as well as James Davis. William Rollins was wounded.

The defendant pled self-defense, to establish which he relied primarily upon the testimony of Theresa Barton. While there was no evidence tending to indicate that anyone other than the defendant possessed a weapon of any sort, Miss Barton testified that Rollins was 'coming after' the defendant, and that Davis and Toomer were 'walking toward' him when all were shot.

The first question posed for this Court's determination relates to the following portion of the trial judge's instructions to the jury:

'And, while malice is presumed or implied from the use of a deadly weapon, where the circumstances relating to the death of the deceased are brought out in the evidence, then this presumption vanishes and the burden is on the State to prove malice where a deadly weapon is used by evidence which satisfies you on the jury beyond a reasonable doubt.'

The defendant contends that the trial judge should have charged that the law creates no presumption of malice when the circumstances attending the homicide have been developed during the course of the trial. The identical contention was advanced upon this Court in State v. Davis, 50 S.C. 405, 27 S.E. 905 (1896), and the following language employed therein is equally appropriate here:

'This exception is not well taken. It was quite applicable and appropriate in this case for the judge, in his charge, to explain the meaning of 'implied malice,' the indictment being for murder. The record further declares that, immediately after explaining 'implied malice,' he expressly charged precisely as it is claimed he should have charged.'

In cases too numerous to require citation it has been held that instructions must be considered as a whole when ruling upon exceptions to portions thereof. Cases collected, 7A South Carolina...