GARY
A. J.
The defendant was indicted for the murder of S.W.
Thornley, and was convicted of manslaughter. Upon being
sentenced to 10 years at hard labor in the state
penitentiary, he appealed to this court upon exceptions,
which will be considered in their regular order.
First
Exception. "Because his honor Judge Gary, the presiding
judge, erred in his charge to the jury, the same, taken as a
whole, being erroneous, although some of the propositions of
which the said charge is composed may severally be
conformable to recognized authority. Nevertheless the said
charge, taken in its entire scope and bearing on the case,
was likely to lead the jury to a misconception of the law as
applicable to the case, in which it imposed upon the
defendant the burden of the proof, throughout the case,
shifting same from the state." Waiving the objection
that the exception is too general, it cannot be sustained.
His honor the presiding judge charged that the burden of
proof was upon the defendant to establish his plea of
self-defense, by the preponderance of the evidence, but
likewise charged that it was incumbent on the state to prove
every material allegation of the indictment, beyond a
reasonable doubt. The recent case of State v. Way,
76 S.C. 94, 56 S.E. 653, shows that the charge was free from
the error assigned in this exception.
Second
Exception. "Because his honor the presiding judge erred
in charging the jury as follows: 'The Constitution of
this state guarantees to every citizen the protection of his
life and liberty and the right to accumulate property. The
grand jury of Berkeley county has charged the defendant here
with having violated that guaranty, and he denies the charge.
He was arraigned on the charge of murder, and he pleaded not
guilty, and that has raised the issue that we are to
try'-because it is respectfully submitted that the grand
jury did not charge the defendant with having violated the
announced guaranty of the Constitution."
Even if it should be conceded that the charge was technically
inaccurate, the appellant has failed to show that it was
prejudicial.
Third
Exception. "Because his honor the presiding judge erred
in charging the jury as follows: 'Now what is the issue?
What is the charge? What is your inquiry? The defendant
pleads not guilty, and sets up the plea of self-defense, and
by that plea admits that he killed the deceased, but assumes
that burden of the proof to show that he did it under such
circumstances that the law will excuse him will not hold him
responsible'-for the reason that the defendant by
pleading, did not assume the burden of the proof, but the
burden of proof is on the state throughout the trial of the
case." It is true the circuit judge charged that the
burden of proof rested upon the defendant to make out his
plea of self-defense, by the preponderance of the testimony,
but he likewise instructed the jury that the defendant was
entitled to the benefit of any reasonable doubt on any
material fact in the case. When the
charge is considered in its entirety, it will be seen that it
is free from error.
Fourth
Exception. "Because his honor the presiding judge erred
in charging the jury as follows: 'The question is, has
that defense been made out? and there our duties become
severed. It is my duty to tell you what the law requires, and
it is your duty to say whether or not the facts and
circumstances satisfy the required demands of the
law'-for the reason that the question was not solely,
'has that defense been made out?' but the question at
issue was, 'had the state proved the defendant guilty
beyond a reasonable doubt?' and the jury was not limited
by the instruction to the inquiry whether or not the position
of self-defense had been made out, but their duty was to
inquire from the testimony whether or not the testimony
proved the defendant guilty of any offense beyond a
reasonable doubt." When that portion of
the charge set out in the exception is considered in
connection with the entire charge, it will be seen that it is
free from error.
Fifth
Exception. "Because his honor the presiding judge erred
in charging the jury: 'If such is the case, and the facts
and circumstances bring the proof up to that point, then his
plea is made out; if not, the plea falls to the ground, and
you ask yourself what offense he has committed. He holds that
up as a plea to show why he should not be punished; and if
his plea is sustained, then you cannot punish him, but if his
plea is not sustained, then it falls to the ground, and you
inquire of what he is guilty. Was the assault made on him
with a pistol or weapon, calculated to produce serious
injury, or did the defendant pick an occasion when it was not
necessary for him to shoot? If his plea of self-defense is
made out to your satisfaction, then that ends the case; if
not, you will ask what offense he has committed, whether
murder or manslaughter'-because he did not instruct the
jury that, if the plea of self-defense was not sustained, the
defendant was guilty of some crime; in other words, that, if
he failed to make out his plea of self-defense, then he must
necessarily be guilty of either murder or manslaughter."
We are unable to see in what respect the failure to instruct
the jury in the manner set out in the exception was
prejudicial to the rights of the appellant.
Sixth
Exception. "Because his honor the presiding judge erred
in charging the jury as follows: 'Where a man kills
another without cause or upon very slight provocation, with a
deadly weapon, the law infers that it was done with
malice,' for the reason that, as the facts and
circumstances of this case admitting the homicide had been
disclosed in the evidence, there was no room for presumption
of any crime." It is not necessary to consider whether
the charge was erroneous as the defendant was only convicted
of manslaughter. If there was error it was immaterial.
State v. McIntosh, 40...
