The appellant, O.E. S. Howell, and his wife, Carrie S. Howell, were tried together at the July, 1930, term of Court of General Sessions for Sumter County, on an indictment charging them with the murder of one E. Hart Williams. The wife was acquitted; but Howell was found guilty of murder and sentenced to death by electrocution. He now appeals to this Court.
When the case was called, appellant moved the Court that he be granted a separate trial, on the ground that his wife's defense was hostile to his. Also, at the close of all the testimony, a motion for a mistrial as to the appellant was made, on the ground that his rights had been jeopardized on account of conflict between the positions taken by the two defendants. Both of these motions were refused, and the appellant assigns error.
It is undisputed that on June 18, 1930, Mrs. Howell went to a filling station in the City of Sumter, where the deceased, Williams, was working; that she called him out of his place of business and was talking with him when her husband come upon the scene and shot him to death with a pistol. Howell immediately thereafter stated that his wife had pointed out the deceased to him as a man who had ravished her the week before, and that he shot him because it appeared that the deceased was about to shoot him. His wife, at first, also claimed that some man had violated her, and said that she had told her husband about it; but she lated denied, in an affidavit, that Williams or any other man had mistreated her saying that her statement to her husband had been made for the reason that he had threatened and abused her and charged her with infidelity, and that she stood in fear that he would take her life. The appellant thereupon made an affidavit, in which he declared that the latter statement of his wife was true and correct.
The motion for severance was within the discretion of the trial Judge. In the recent case of State v. Francis, 152 S.C. 17,149 S.E., 348, 351, 70 A.L.R., 1133, Mr. Justice *Page 402 (now Chief Justice) Blease, speaking for the Court, said: "It has been repeatedly held by this Court that a motion for a severance and separate trial on the part of one or more defendants in a case, where several persons are jointly charged with a criminal offense, is addressed to the discretion of the trial Court. See State v. Kenny, 77 S.C. 236, 57 S.E., 859;State v. Wade, 95 S.C. 387, 79 S.E., 106; State v. Brown,108 S.C. 490, 95 S.E., 61; State v. Hannahan, 111 S.C. 58,96 S.E., 667; State v. Jeffords, 121 S.C. 443,114 S.E., 415."
See, also, State v. Wise, 7 Rich., 412, which is a leading case on the subject.
In the case at bar, the trial Judge had before him the written statements, the confessions, etc., of the defendants as to the manner and cause of the killing, and under the facts thereby revealed there was no abuse of discretion on his part in refusing to give the appellant a separate trial.
When J.D. Anderson, a witness for Mrs. Howell, was on the stand, Mr. Schwartz, one of her counsel, asked him, with regard to when he knew about Howell's treatment of his wife, the following question, and also, in the same connection, made the following remarks:
"Q. Did you know his reputation for the way he treated his wife, whether he mistreated her or treated her kindly?"
"Mr. Schwartz: We take the position that the question is competent, inasmuch as there is offered in evidence the statement by the defendant, Carrier S. Howell, that she was forced, coerced, and under duress used by her husband to make this statement. We want to show that she has stood in fear for years —"
The Court also allowed Mrs. Howell, over the objection of appellant's attorneys, to testify as follows:
"Q. You were afraid he was going to kill you? A. Yes, sir, I was.
"Q. Did he treat you in such a way as to lead you to believe that he would kill you? A. Yes, sir. *Page 403
"Q. You stood in fear of him? A. Yes, sir."
Appellant complains that the question asked the witness Anderson, the remarks of counsel for Mrs. Howell, and her testimony, admitted over his objection, were highly prejudicial to him. With regard to the question asked Anderson, the Court did not allow the witness to answer, and also instructed the jury to disregard what counsel said in that connection; and so no harm was done.
As to the testimony of Mrs. Howell, her defense was that she acted under the coercion of her husband; his treatment of her causing her to stand in fear for her life. While this testimony was offered in defense or mitigation of what the wife had done, the manner of the husband's treatment of her could not have affected his guilt or innocence on his trial for murder. Under appellant's own testimony, the question of whether he killed Williams because of any statement made to him by his wife was eliminated, in that he testified that he shot the deceased, not because of anything his wife had told him, but because he thought the deceased was about to shoot him. Therefore the circumstances under which her statement to him was made could not have affected his defense. But, even if he had claimed that what she told him was the moving cause of the killing, testimony that her statement to him was made under coercion by him would have been admissible to impeach his defense.
When Mrs. Goodman, a witness for appellant, was on the stand, he attempted to prove by her that he had told her, several days before the homicide, that his wife had complained to him about some man's having ravished her. Appellant complains of the rejection of this testimony. For several reasons this assignment of error cannot be sustained. The statement was plainly self-serving. It was so far removed from the time of the homicide as to be inadmissible as part of the res gestae; and a question of this kind is largely a matter within the discretion of the trial Judge.State v. Way, 76 S.C. 91, 56 S.E., 653. *Page 404
Complaint is also made that the Court committed error in permitting Mr. Jefferies, counsel assisting the solicitor in the prosecution of the case, to comment upon the absence of testimony that had been ruled out upon objection of the State. It appears that Mr. Jefferies, in his argument to the jury, stated that, if Howell's testimony was true, to the effect that his wife told him about some mistreatment of her by an unknown person, he should have reported it, which he had not done. Objection was made to this line of argument, but was overruled by the Court, who allowed counsel to proceed.
When appellant was on the stand, he was cross-examined at length with regard to his failure to report to the authorities what he claimed his wife had told him. He stated that he had not done so, for the reasons that he did not know whom to report it to, that he was investigating the matter for himself, and that he was indifferent about it, as he was not sure his wife was telling the truth.
In State v. Robertson, 26 S.C. 117, 1 S.E., 443, the Court said: "It is most certainly proper, especially in criminal cases, that counsel, in addressing the jury, should keep themselves strictly within the record. This rule is essential, and must be enforced; but from the very nature of the case some latitude in argument must necessarily be allowed. It is often matter of difficulty to draw the line sharply between legitimate argument and unauthorized statement — between what is and what is not allowable; and, as this pertains to the conduct of the cause, it must, to a large extent, be left to the wise discretion of the Circuit Judge. We could not affirm that the omission of the Circuit Judge to restrain the solicitor in his argument was such error of law upon his part as to authorize this Court to set aside the verdict on that ground."
The trial Judge in the present case, who was always fair and impartial, and for whose memory both bench and bar *Page 405 cherish the tenderest feeling, had heard all the testimony brought out in the case, over a period of several days, and was at that time listening to the arguments of counsel. If he had thought Mr. Jefferies' argument was outside the facts as disclosed by the testimony, he would have forthwith required him to come within the record. He evidently thought, which was a reasonable view — and doubtless that of the jury — that counsel was referring to the testimony of appellant himself as to his failure to "report" to the authorities what his wife had told him. A matter of this kind necessarily, as held in the Robertson case, is largely within the discretion of the trial Judge, and an examination of the record has not convinced me that there was such error of law on his part, if any, in refusing to sustain appellant's objection, as to require a new trial for that reason.
When Howell was on the stand, counsel for his wife was permitted to ask him whether or not he had ever practiced medicine; and, over objection of his counsel, he was required to answer the question. He complains that this was error, in that it violated the rule with reference to asking the defendant about other offenses he may have committed, since appellant, not being a licensed physician, if he had practiced medicine, had violated the statutory law of the State. There are two reasons why this assignment of error cannot be sustained: First, the Court told the jury not to consider but to disregard the testimony; and, second, when Mrs. Howell was on the stand, she was allowed to testify, without objection, that her husband had practiced medicine.
In the beginning of his charge, Judge Wilson took occasion to compliment those connected with the trial of the case for the expeditious manner in which it had been concluded; and called attention, in that connection, to the fact that we often read of cases that take weeks or months for trial, referring to the Beatty and McCue cases as examples of that kind. Appellant contends that these remarks tended to create *Page 406 in the minds of the jury the impression that the trial Judge regarded the case at bar as being parallel to the Beatty andMcCue murder cases, and in this way prejudiced the rights of the appellant. This contention is without merit. From a reading of this part of the charge, it is clear that the jury did not get the impression suggested by the appellant. While the remarks were immaterial and irrelevant, they furnish no ground for a new trial. State v. Corbin, 16 S.C. 533.
The Court further observed, in the introduction of his charge, that, when defendants brought before the Court for trial upon the grave charge of murder are without counsel, it becomes the duty of the Court to appoint members of the bar, learned in the law, to represent them; and that in the case at bar he had done so by appointing two able attorney to represent each of the defendants, and that they had promptly responded, with ability and zeal, without pay or hope of reward. Appellant complains that these remarks constituted error, as they tended "to create in the minds of the jury the impression that the trial Judge thought the conduct of the defendants to be so heinous that it was necessary to exculpate the attorneys for attempting their defenses." It does not appear, however, that the remarks objected to created any such impression on the minds of the jury. While they irrelevant and immaterial, it cannot be said that they were unfavorable to appellant. The case was a serious one, and the trial Judge evidently felt that the able conduct of the defense by counsel appointed deserved, under the circumstances, the compliment which he endeavored to pay them — though it might be thought that he selected the wrong time and place to pay it. In addition, the Court told the jury that what he was saying was without reference to the merits of the case.
In defining malice, the trial Judge charged the jury as follows: "What is malice? Malice is a term of art, gentlement, used in the law books. It is defined about this way. It *Page 407 is any form of design of doing mischief, which arises from hatred or revenge. But the legal definition is, malice is the wilful, intentional doing of a wrongful act, knowing it to be wrong. Wilful, intentional, and when a person does an act, knowing it is wrong, he intends to do it, it is malicious."
The appellant complains that in this instruction the Court erred in the following particulars:
"(a) The same is a charge on the facts.
"(b) The same is an error of law, because when a person does an act knowing it is wrong, it is not necessarily malicious per se, but at most is only evidence from which the jury may conclude the act to be malicious.
"(c) This confused the elements of the crime of murder with those of the crime of manslaughter, because in the case of manslaughter, a person kills another knowing it is wrong, and it is his intention to do it, but he acts under sudden heat and passion, but without malice. It is therefore for the jury to determine, under the circumstances of each case where a person kills another knowing it is wrong and intending to do it, whether the act is accompanied by malice or whether the same is committed in sudden heat and passion upon a lawful provocation."
The first ground of objection is without merit. See Statev. McIntosh, 39 S.C. 97, 17 S.E., 446. The second (b) and third (c) assignments of error, however, have given us grave concern.
In State v. McDaniel, 68 S.C. 304, 47 S.E., 384, 386, 102 Am. St. Rep., 661, the Court charged the jury as follows: "In this case, if defendant intentionally, wrongfully, killed the deceased, without any justification or excuse, then he killed him with malice, and that would constitute murder." This charge was excepted to by the defendant, and upon appeal this Court said: "The Court here was instructing the jury with reference to murder, and malice as an essential ingredient. In the sentence just preceding the one *Page 408 excepted to, the Court said: `In its general signification, "malice" means the doing of a wrongful act intentionally, without justification or excuse.' This is substantially the famous definition of `malice' by Bayley, J., in Bromage v.Prosser, 10 E.C.L., 321: `"Malice," in common acceptation, means ill will against a person, but in its legal sense it means a wrongful act done intentionally, without just cause or excuse.'"
In State v. Rochester, 72 S.C. 194, 51 S.E., 685, 687, relied upon by appellant, the trial Court instructed the jury as follows: "The State charges the killing was murder; that is to say, that it was done with malice aforethought, either expressed or implied. Now, what does that mean? (A great deal has been said and written as explanatory of malice and to illustrate malice, and men may have different conceptions of what that legal term means. After all, what is malice? It is the intentional taking of human life.) And in the investigation of this question, therefore, you can see you must perform the some what delicate and difficult task of trying to interpret the intention which actuated the act."
The defendant complained that this was an incorrect definition of malice and calculated to mislead the jury to his prejudice.
This Court, after reviewing a number of decisions, said:
"These cases are cited with approval in State v. Ariel, 38 S.C. 221,16 S.E., 779. It will thus be seen that the charge was inapplicable to the facts of the case under consideration; the witnesses having testified as to the facts and circumstances surrounding the homicide.
"It might be that the Court would regard the charge as merely illustrative of malice, and that the error was corrected in the subsequent charge as to the different degrees of homicide (under the cases of State v. Murrell, 33 S.C. 83,11 S.E., 682, and State v. McDaniel, 68 S.C. 304,47 S.E., 384, 102 Am. St. Rep., 661), but for the fact that *Page 409 the principle was emphasized and made applicable to the facts in this case in the other portion of said charge. The first exception is sustained."
In the case at bar, the state contends that, under the facts and circumstances shown, there was no error as complained of, and that certainly, if there was error, it was harmless when the charge is considered as a whole; and State v.Crosby, 88 S.C. 98, 70 S.E., 440, 442, is relied upon to support the correctness of the definition of malice as given. In that case the Court charged the jury as follows: "Another definition [of malice] is that it is the willful and intentional doing of a wrongful act, and the person knowing his act to be wrong, knowing it to be against the law, and wilfully does it, the law says when a man does that he does it maliciously."
Crosby excepted to this charge, contending that it was error to thus define malice without stating that the wrongful act must be without justification or excuse; this being an essential part of the definition of malice in that connection. This Court, on appeal, in disposing of the exception, merely said: "When the charge is considered as a whole it will be seen that this exception cannot be sustained." As the whole charge was not printed in the report of the case, it does not appear just what instruction rendered harmless the error complained of.
It is to be observed that the definition of malice in the case at bar is practically the same as that in the Crosby Case. The legal definition is undoubtedly incorrect, in that it takes no cognizance of just cause or legal excuse for the killing; and, unless the error was harmless under the peculiar facts and circumstances of the case, this Court would be bound to reverse the judgment and order a new trial.
The evidence offered, aside from that of the defendant Howell and his witnesses, tended to show that the killing was deliberate and coldblooded, and the only reasonable *Page 410 conclusion to be reached from the evidence of the defendant himself is that the killing either was murder or was done in self-defense. He testified that the week before the homicide occurred his wife told him that she had been ravished on three different occasions by a man who had broken into their home at night; that he was indifferent about the matter, and did not report it to the authorities, for the reason that he was not sure his wife was telling the truth, being unable to see how any one could get into the house when the door was locked, unless let in by some one on the inside; that on Tuesday of the week following the alleged mistreatment of his wife they went out to look for one Dollard, who he thought might possibly be the man; that they did not find Dollard, but his wife told him there was a man working at a filling station whom she thought to be the one; that on Wednesday morning, while they were down town, he told his wife to go around to the filling station to see the man and ask him about it, telling her that he (the appellant) would go home and rest, but that he did not do so, going instead to the filling station; that when he arrived there his wife and Williams were talking — she had called the man out of his place of business — and that she told him Williams was the guilty man; that thereupon deceased called his wife a damn liar and reached back to his hip pocket; and that he then shot and killed him. He admitted that he did not know that the man he killed had ever wronged his wife, but relied on what she had said. When asked whether he would have shot Williams for simply calling his wife a damn liar, he replied: "No, sir; not unless he made some effort to kill me." He further said that, in looking for Dollard, his purpose was only to get an explanation of the matter, and that, if he had found Williams to be the man, he intended to treat him in the same way. He further testified that he would not have taken the life of the deceased if he had not put his hand on his hip pocket, and that the reason *Page 411 he shot was that he thought the deceased was about to shoot him. Narrowed down to its final analysis, appellant's testimony does not show that he shot the deceased under sudden heat of passion, either for the reason that he may have thought he had ravished appellant's wife or because of anything deceased said at the time of the killing. Furthermore, no words, however, opprobrious, will constitute the legal provocation necessary to reduce a killing from murder to manslaughter. State v. Bethune, 86 S.C. 143,67 S.E., 466; State v. Jacobs, 28 S.C. 29, 4 S.E., 799. Nor could appellant here have successfully maintained — even if he had so attempted — that he killed under sudden heat of passion engendered by what his wife had told him, as, under all the evidence in the case, there could be no other inference than that he had had ample "cooling time." It does not appear, therefore, that under appellant's own testimony, the extent of the provocation, even if there was any provocation, was sufficient in law to mitigate the offense and reduce it to manslaughter. The testimony is undisputed that the deceased was guiltless of any wrong against the wife of the appellant; but, even so, the jury might have acquitted the defendant on his plea of self-defense, if they had believed that he went to the filling station with no purpose in mind to kill the deceased, but merely to talk the matter over with him. He had a right to approach the deceased, in a peaceable manner, to ask him about the matter, but not for the purpose of taking the law into his own hands. State v. Strickland, 147 S.C. 514,145 S.E., 404. There is no complaint as to the charge of the law of self-defense, of which defendant got the full benefit, but the jury under the evidence rejected his plea, evidently taking the view that his purpose in going to the filling station was to kill the deceased in order to avenge the supposed violation of his wife. So, although the legal definition of malice as given by the trial Judge was not correct, the error, under the peculiar facts and circumstances *Page 412 of the case as revealed by the evidence, was harmless. It is also to be observed that, while the Court charged the law of manslaughter, it was unnecessary, as such law had no bearing on the issues as made by the evidence. See State v.DuRant, 87 S.C. 532, 70 S.E., 306.
In addition, the Court charged the jury, upon request of appellant's counsel, as follows:
"Where one in ignorance or honest mistake as to a fact, commits an act, which but for such mistake would be a crime, there is an absence of malice or criminal intent, which is generally an essential element of crime, and the general rule therefore is that such ignorance or mistake of fact will exempt one from criminal responsibility, provided there is no such fault or ignorance as will amount to criminal intent, provided, all reasonable diligence has been used to arrive at the truth.
"In other words, gentlemen, although a person is not excused on account of a mistake of law, this is not the rule where it comes to an honest mistake of fact. We can only act on appearances and where a person is even killed on account of an honest mistake of fact, the person who does the killing is not to be judged by what the facts subsequently turned out to be; but he is to be judged by the jury in accordance with the appearances as they existed to the defendant at the time of the killing. Provided, of course, that the defendant was honestly mistaken and used all reasonable diligence to ascertain the truth that would be used by a person of ordinary reason."
It would seem that this request was predicated upon the theory that, if appellant's wife told him the deceased was the man who had insulted her, and he honestly believed that she was telling the truth, and killed the deceased for that reason, although his wife had misled him, there would be no criminal intent or malice and such mistake of fact would exempt him from criminal responsibility, if he had *Page 413 used reasonable diligence in arriving at the truth. Even if this charge should be considered as substantially correct statement of an abstract principle of law, such principle, under the facts of this case, was not applicable; and in charging it the Court gave to the appellant the benefit of a defense to which he was not entitled and which, he told the jury, would show an absence of malice.
I have read, and re-read the voluminous record of nearly four hundred typewritten pages, and have given to the questions involved in the appeal careful and painstaking consideration. While there was some error in the trial of the case, I do not think, as I have endeavored to point out, when the entire record is fully considered, that it was prejudicial.
I think the exceptions, therefore, should be overruled, and the judgment of the trial Court affirmed.
MR. JUSTICE CARTER concurs.