State v. Norris

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

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.

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.

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.

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 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.

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 witness and into the windshield of the car. Following the firing of the pistol, the witness attempted to get out of the car and scratched the appellant across the face and at that time he hit her with the butt of the gun across the forehead, breaking the skin and causing her to bleed. During the attack upon her the appellant told the witness 'Damn you, I wish I could kill you but I can't'. Her explanation was that he couldn't kill her because he loved her.

This witness testified that as she was attempting to get out of the car, on the driver's side, Hawk Rigdon came up and told the appellant 'don't do that', or something to that effect. She further testified that the appellant was standing at the open car door and Clyde Ledbetter, now deceased, came up behind the appellant and 'grabbed him in the shoulder' with his left hand. At that time Hawk Rigdon said to the appellant 'look out' and to the deceased 'don't do that'. Then Rigdon grabbed Clyde and shoved him over to the side and the appellant turned and shot him.

Hawk Rigdon was called as a witness by the State. He testified that the appellant left the store and went out to the car in which Freddie Ledbetter was sitting. He said that the two started fighting and she 'was hollering like somebody was killin' her'. The witness said he went to the car, put his left hand on appellant's right shoulder and said, 'Malvin, stop that'. While this was going on Clyde Ledbetter walked up in front of the witness, about two or three feet distant from the appellant, and Hawk said, 'Clyde, I'll get them separated', and about that time one shot was fired and in one or two seconds two or three more shots were fired. Clyde then staggered and fell up against the back end of the car, rolled around and fell flat on his back behind it. Hawk went to Clyde and then came back to where the appellant was and told him that 'Clyde's been shot', to which the appellant replied,' 'You want some of it? Do you want me to shoot you, too?' This witness also testified that Clyde was unarmed and said not a word to the appellant nor did he put his hand on him. This witness stated that he didn't see the appellant do the shooting but the shots came from the car and the pistol would have been on the far side from where he was standing.

The officer who investigated the killing testified that when he arrived at the grocery store where the killing took place, the appellant was standing there with two pistols in his hand. This officer asked the appellant what happened and his reply was, 'I shot the son of a bitch' and the officer saw a man lying...