The opinion of the court was delivered by
Mr. Chiee Justice Simpson.The defendant was indicted and tried at the July term of the Court of General Sessions, 1888, for Pickens County, for the murder of his wife, Jane Alexander. He was convicted, and now appeals upon exceptions to his honor’s charge to the jury, alleging error both as to matters charged and in refusals to charge.
The two first exceptions impute error, because his honor declined to charge as requested, that in order to constitute murder, the'testimony must satisfy the jury that there was a premeditated and formed design to take life on the part of the accused before the commission of the act, and that the killing took place under this premeditated and formed design. His honor declining to charge as requested, charged that “murder was the killing of a human being with malice aforethought. Malice does not consist alone of a formed design to kill another. For instance, one man meets another on the street and an altercation ensues, and raises *83a cane for the purpose of striking him, and strikes the blow and death ensues, that is murder. He may not have formed a design to kill him, but to strike, and in striking him killed him ; that is murder. That is the difference between the request and my view. All that is necessary is that he should have conceived the design to commit an assault upon him, or an assault and battery upon him, and in consequence of that he dies. That is murder, whether he meant to kill him or not. A formed design to take life is not necessary to make a killing murder.”
In other words, the substance of his honor’s charge was, that murder might be committed, as the result of some illegal act, whether the design to take life was actually present or not. This was in accordance with the common law as found in Black-stone, where he says: “And in general, where an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter, according to the nature of the act which occasioned it. If it be in prosecution of a felonious intent, or in its consequences naturally tended to bloodshed, it will be murder; but if no more was intended than a mere civil trespass, it will amount only to manslaughter.”
2nd. His honor was requested to charge that where insanity is raised as a defence by evidence engendering a doubt, it devolves upon the State to remove this doubt and to establish the sanity of the accused beyond all reasonable doubt. This was declined, and very properly; because insanity is a defence, and whether sustained or not, must, like any other defence, depend upon the preponderance of testimony, for or against; weighed and balanced by the jury after it is all out. State v. Paulk, 18 S. C., 515; State v. Coleman, 20 Id., 452; State v. Bundy, 24 Id., 439.
3rd. His honor was requested to charge “That if by reason of mental derangement at the time of the act, the prisoner had not power to control the disposition or impulse to commit the deed, he should be acquitted.” It seems that the effort here was to get the judge to announce the doctrine of irresistible or uncontrollable impulse as distinguished from insanity — that a person though not absolutely insane, or demented to the extent of not knowing the difference between right and wrong, or not incap*84able of knowing the moral character of an act, yet might be led on by an uncontrollable impulse to commit the deed charged, and therefore he should be held irresponsible if committing it under such circumstances. His honor declined to make such charge to the jury; on the contrary, he charged that mere mental weakness was not sufficient to exempt one from responsibility ; that it required insanity, and insanity to the extent of destroying a knowledge of the wrongfulness of the act, morally and legally, before exemption could be plead; that irresistible impulse could not be interposed as long as the accused knew that the act which he was committing was a crime morally, "and punishable by the laws of his country; that such knowledge made it imperative that he should control himself at his peril. Without going further, we think his honor’s charge was in accordance with the doctrine laid down in this State in the case of State v. Bundy (24 S. C., 445), where this court sustained the Circuit Judge in holding that the true test of responsibility was knowledge “that the act committed was wrong, or criminal, or punishable, either the one or the other,” because, said the Circuit Judge, “notwithstanding his mind may be diseased, if he is still capable of forming a correct judgment as to the nature of the act, as to its being morally or legally wrong, he is still responsible for his act and punishable as if no mental disease existed at all.” This court said : “We cannot say that this was error of law.” •
His honor charged, “That where the killing is proven, and no more, the law will imply malice and make the act murder; but when all the facts and circumstances of the killing are in evidence, then the jury must say from the testimony what was the intention with which the act was committed. Then it becomes a matter of proof — no implication any longer.” And this was excepted to as error.' We see no error in it, certainly none of which the prisoner could complain; on the contrary, it was as favorable to him as the law allowed.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.