State v. McIntosh

• Decision Date: 17 February 1894
• Citation: 18 S.E. 1033,40 S.C. 349
• Parties: STATE v. McINTOSH.
• Court: South Carolina Supreme Court

18 S.E. 1033

40 S.C. 349

STATE v. McINTOSH.

Supreme Court of South Carolina

February 17, 1894

Appeal from general sessions circuit court of Abbeville county; J J. Norton, Judge.

Singleton A. McIntosh was convicted of homicide, and appeals. Affirmed.

The charge of the court was as follows:

"Mr Foreman and Gentlemen of the Jury: The defendant in this case is charged in this indictment with the murder of a fellow being, and it involves, of course, questions of fact as well as questions of law. The first question for your consideration is, did the defendant kill the person who is alleged to have been killed, and, if he is guilty of any offense, what offense is he guilty of any offense, what offense is he guilty of, if he did the killing? There are two degrees of murder which are offenses against the law,--murder and manslaughter,--but justifiable homicide the third degree, is no offense against the law; and therefore you will take notice particularly of these three different grades of homicide. The highest grade of homicide is murder. Murder is the felonious killing of any person with malice aforethought, either express or implied. Excusable homicide is rendered so by several reasons which operate to a justification or excuse in law that is wholly excusable. And, gentlemen, some confusion might, perhaps be in your mind to distinguish the manner of proof as to the different grades of homicide. Now, there have been different witnesses sworn upon the stand. I don't mean to say that they have all been consistent in their statements. But the defense, in not putting up any testimony, insist that the case has not been made out by the state; that is to say, if you take that testimony,--so much of it as you can possibly believe, and do believe,--and formulate a theory out of which it will show a state of facts which would excuse this defendant as to the killing, which is admitted to have occurred, and you would not have any doubt about that if it were presented to you singly, as in the case where a man is executed, and it is brought to your attention that he had been executed under a proper mandate of the court, it would appear clearly that it was a justifiable homicide; and so you need not be confused when the question comes up for your consideration in locating the character of the crime as between self-defense and justifiable homicide, or whether or not it was by reason of self-defense. Don't let that confuse you in the one case or the other. It would be necessary for it to appear that the defendant had not been proven to be guilty beyond a reasonable doubt. In the case of the sheriff, if he would hang a man, and if he did not produce the authority, although he had it, but if he did not produce it, he might be considered guilty of murder or, if he hung the man at a different place from where he was ordered to hang him, he would be guilty of murder; but you would say that the sheriff had not been proven legally guilty by the testimony offered by the state. Now, gentlemen, in order to make out a case of self-defense, it is necessary for the defendant to prove his innocence by a preponderance of the testimony; and the state must make out its case beyond a reasonable doubt, when you take all of the testimony in the case into consideration, and you must believe all of it beyond a reasonable doubt before you can convict him. Now, in order to avail one's self of the plea of self-defense, it must appear that he was without fault in bringing about the difficulty,--that at the time he struck the fatal blow he was so assaulted that he believed that he had no other probable means of escape from immediate death or from immediate serious bodily harm. And the defendant must not only have believed that himself, but he must act upon that belief, subject to your judgment that a man of ordinary firmness and resolution, endeavoring to obey the law, would have believed the same thing under similar circumstances, in which the defendant was placed at the time.

"Now, gentlemen, you are ready to begin to apply the more minute definitions of the different degrees of homicide. Murder is the killing of any person with malice aforethought, either express or implied. 'Malice' is a technical term. Ordinarily we use the term as if it was a grudge or hatred. If there was any grudge or hatred, and the killing is upon that grudge or hatred, that is express malice; and that express malice is evidenced by certain deliberation,--by such deliberation as lying in wait and shooting from ambush. That would be a very great evidence of express malice. And so, gentlemen, if one deliberately and intentionally poisons another, it must be upon an old grudge. Implied malice is malice implied from the law itself. Every killing, if nothing more occurred except the killing, would be upon an implied malice. But you are to take into consideration that that is implied by law,--it is a presumption of the law. And, whenever the facts and circumstances attending the killing have been developed before you, the law does not imply any malice, but it affords you room for the exercise of your judgment, and it gives you certain rules of law which will aid you in determining whether there is or is not malice. If all of the circumstances in the case gave you no more light than the mere fact that the killing occurred, you would not be helped at all, but would still be left to your presumption of law, because, if the fact of the killing is made out beyond a reasonable doubt, then you must be able to say, from the facts and circumstances, whether it was a malicious killing or not; and if the circumstances throw no light at all on it, then you would still be left to the presumption of the law; but, if the circumstances throw any light upon the character of the transaction at all, then you must determine from these circumstances what the character of those transactions was, and you are to say whether it was from malice, or upon sudden heat and passion, or whether it was justifiable or excusable. Then, gentlemen, malice is defined, also, to show the deliberation. But the deliberation need not be any longer than enough to determine whether or not he will take the life of his adversary. If long enough to determine, then it will be long enough to be malicious. If nothing more appears for it to be malicious,--if it is only for a moment, and that is sometimes without any apparent motive or deliberation, but upon the impulse of the moment; sometimes a person takes up an axe, and inflicts the fatal blow, or shoots one down,--that impulse, then, without any provocation, it is said in the law, would be sufficient to imply the malice, nothing else appearing. But malice does not always exist when there is a killing with a deadly weapon,--a weapon which causes death. But the presumption may be rebutted when it is highest. Certainly it can be rebutted when the act has been committed with a deadly weapon, which is the very highest. This presumption can be rebutted only with reference to the facts which have been testified to in this case. But, not attempting to determine for you what facts have not or have been proven, where the killing is with a gun, as in this case, the killing may be reduced to manslaughter if it is done in sudden heat and passion. For instance,--without being able, if I desired to do so, to go all over all the testimony for the purpose of illustration--But I say to you that if the defendant here did as he says he did, and, not having any malice, got up from a table at which the deceased was sitting, for the purpose, bona fide, of avoiding a difficulty, and the conduct of the deceased was so provoking as to arouse his blood,--to temporarily lose control of his passions,--then it would be manslaughter, even if adhered to still further to reduce it. But the law don't allow the defendant, when slightly touched, to put up the excuse that his blood was so inflamed that he had lost control of his passions, unless it was really so, or unless the circumstances justified the jury in believing that it was so; that is, there must be sufficient legal provocation. If there was merely a light touch or blow, he would not have the right to say that his blood was inflamed so that he had lost control of his passions. The law would not excuse him if he got in that uncontrollable fit, but it would judge him by a man of ordinary firmness and courage. But, gentlemen, even a slight blow, or even no blow at all, when it is accompanied by menace to serious bodily harm or life of the defendant, if it was, in your judgment, sufficient to excite the defendant's passions beyond control, would reduce the crime from murder to manslaughter. Now, when you go to consider that subject, you inquire whether the deceased was making towards the defendant, and whether it was under such circumstances after a threat, and under such circumstances as would have induced him, and would have induced a reasonable man, to have lost the control of those passions, you are to determine. You are to determine, gentlemen, what knowledge the defendant had of the surroundings of the deceased, what opportunities he had of knowing how much he was in danger by being armed or not being armed, or any other circumstances that he may have known, and that in your judgment the testimony shows that he must have known of the condition of the deceased; and you are to determine from that what the degree of menace to his body was, because I don't think he told Mr. Mann, the sheriff, that he was actually struck, but that he was making at him as if he was trying to do him serious bodily harm. I don't remember the exact words, but you do. You will get the real meaning of the words, and apply it.

"Then, gentlemen, are you satisfied from the surroundings of

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