State v. Norris, No. 18936

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MOSS
• Citation: 168 S.E.2d 564,253 S.C. 31
• Decision Date: 02 July 1969
• Docket Number: No. 18936
• Parties: The STATE, Respondent, v. Malvin E. NORRIS, Appellant.

Page 564

168 S.E.2d 564 253 S.C. 31 The STATE, Respondent,
v.
Malvin E. NORRIS, Appellant. No. 18936. Supreme Court of South Carolina. July 2, 1969.

[253 S.C. 33]

Page 565

Thomas C. Brissey, Louis G. Sullivan, Greenville, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Emmet H. Clair, Robert H. Hood, Columbia, Solicitor B. O. Thomason, Jr., Greenville, for respondent.

[253 S.C. 34] MOSS, Chief Justice.

The appellant, Malvin E. Norris, was tried at the 1966 December Term of the Court of General Sessions for Greenville County on an indictment charging him with the murder of one Clyde Ledbetter on August 25, 1966, which trial resulted in a conviction of murder, with a recommendation to mercy, and he was sentenced to life imprisonment.

At the trial the appellant was represented by retained counsel and this appeal is prosecuted by appointed counsel. No evidence was presented by the appellant. Following the verdict of the jury convicting the appellant of murder with a recommendation to mercy, he did not make a motion for a new trial. However, he did file timely notice in intention to appeal to this court from the conviction and sentence.

The appellant alleges that the trial judge committed error in the trial of his case in the following particulars: (1) in failing to submit to the jury the offense of manslaughter when such was requested by defense counsel; (2) in admitting into evidence pictures of Freddie Ledbetter, a principal witness for the State, and of her clothing and garments, over the objection of the appellant; and (3) in allowing Freddie Ledbetter to testify concerning the physical condition of the deceased.

[253 S.C. 35] The first question to be determined is whether the trial judge erred in failing to submit to the jury the offense of manslaughter. The rule is well established in this jurisdiction that on a trial for murder growing out of the use of a deadly weapon, it is unnecessary to charge the law relating to manslaughter where the testimony fails to suggest any theory upon which a verdict of manslaughter could rest. It is equally well settled that to warrant the court in eliminating the offense of manslaughter it should very clearly appear that there is no evidence whatever tending to reduce the crime from murder to manslaughter. State v. Gardner, 219 S.C. 97, 64 S.E.2d 130.

Voluntary manslaughter is usually defined as the unlawful killing of a human being in sudden heat of passion upon a

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sufficient legal provocation. State v. Gardner, 219 S.C. 97, 64 S.E.2d 130.

In State v. Davis, 50 S.C. 405, 27 S.E. 905, the court said that:

'It may be concluded, therefore, that 'the sudden heat and passion, upon sufficient legal provocation,' which mitigates a felonious killing to manslaughter, while it need not dethrone reason entirely, or shut out knowledge and volition, 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. * * *'

In determining whether the act which caused death was impelled by heat of passion or by malice, all the surrounding circumstances and conditions are to be taken into consideration, including previous relations and conditions connected with the tragedy, as well as those existing at the time of the killing. While there is some evidence that appellant was in a fit of passion or frenzy at the time of the homicide, the question is whether there is any evidence tending to show that such passion was engendered by a sufficient legal provocation.

[253 S.C. 36] It is undisputed that Clyde Ledbetter died as a result of three bullet wounds inflicted by the appellant. The physician who performed an autopsy upon the dead body of Clyde Ledbetter testified that the chest wound or the wound in the mouth and neck could have caused his death.

Freddie Ledbetter, the daughter of the deceased, Clyde Ledbetter, testified in behalf of the State and admitted that she was living with the appellant without the benefit of matrimony. The witness and the appellant operated a small grocery store on the Easley Bridge Road, in the City of Greenville. This store was closed at about 11:30 P.M. on the night of August 25, 1966. At the time of the closing, the appellant, Clyde Ledbetter, and Hawk Rigdon were present. All of them had been drinking to some extent. The witness had in her possession the days' receipts from the store and entered her car for the purpose of going home with the appellant. The appellant followed the witness out to the car and demanded that she give him $50.00 of the money. An argument ensued between them when she refused to comply with his demand, on the ground that 'he would just probably take it, get drunk and blow it in.' After the witness had entered her car, the appellant slapped her and then pulled out a pistol and shot through the open door. The bullet passed by the...