State v. McIntosh

The opinion of the court was delivered by

Mr. Chiee Justice McIver.

Under an indictment for the murder of James N. Newby, the defendant was convicted of manslaughter, and having been sentenced to confinement in the penitentiary, at hard labor, for the term of five years, appeals upon the several grounds which will hereinafter be considered. These exceptions impute to the Circuit Judge sundry errors in his charge to the jury ; and as they are based upon detached quotations from the charge, it is necessary that the entire charge should be set out in the report of this case, in order that the connection in which the words quoted as the basis of the several exceptions were used may be seen ; for it has been repeatedly held that the correctness of the charge must be determined, not by detached sentences, but by a consideration of the charge as a whole. It should also be observed that there was no controversy as to the fact, that the deceased was killed by the prisoner, and the only question for the jury was as to the character of the homicide — whether it was murder, manslaughter, or excusable as done in self-defence.

1 The first exception imputes error to the Circuit Judge in using this language to the jury: “In order to make out a case of self-defence, it is necessary for the defendant to prove his innocence by a preponderance of the testimony.” From the connection in which this language was used in the charge, it is very manifest that it was not used, and could not have been understood by the jury, as conveying the idea that the accused is ever called upon to prove his innocence in the first instance; but the meaning plainly was, and was so undoubtedly understood by the jury, that while the State was bound to prove its case beyond all reasonable doubt, the defendant who sets up a plea of self defence is only bound to prove the facts necessary to sustain such plea merely by the preponderance of the evidence; and when that degree of evidence is offered, his innocence is established. The manifest object and effect of the language objected to was to draw the distinction, well recognized in the law, between the degree of evidence required to sustain the plea of self-defence — that is, the innocence of the accused — and that which is required to sustain the charge made by the State. This is manifest from the language used by the judge in the same sentence, immediately after the language quoted as objectiouable, where the jury are explicitly instructed that the State must make out its case beyond a reasonable doubt. We do not think that the jury could have failed to understand from that portion of the charge here under consideration, that, while the defendant was only bouud to prove the facts necessary to sustain his plea of self-defence by a mere preponderance of the testimony, the State was bound to prove every material element of the charge beyond all reasonable doubt; and this is in direct conformity to the rule as laid down in State v. Bodie, 33 S. C., at page 132-3. The first exception canuot, therefore, be sustained.

2 We will next consider that portion of the charge which is objected to in the second, fourth, and seventh exceptions, which may be considered together, as they all complain of the instructions given to the jury, as to what was necessary to sustain the plea of self-defence; for in the second exception the complaint is, that the jury were instructed that in order to avail one’s self of the plea of self-defence, it must appear that “at the time the prisoner struck the fatal blow, he was so assaulted that he believed that he had no other probable means of escape from immediate death, or from immediate serious bodily harm.” In the fourth exception the language objected to is: “If you come to the conclusion that he (the defendant) thought that there was any other means of escape, then you ought not to give him the benefit of self-defence.” And in the seventh exception, the language pointed out as objectionable is this: “At the time of the homicide, the prisoner must have believed that the deceased was assaulting him in such a manner that he had no other probable means of escape from that assault except by taking the life of the deceased, or by doing what he did do, to prevent the loss of his own life or serious bodily harm to himself.” In the case of State v. Wyse, 33 S. C., at page 594, it is said that “the plea of self-defence rests upon the idea of necessity — a legal necessity — that is, such a necessity as, in the eye of the law, will excuse one for so grave an act as the taking of human life.” In other words, one cannot claim indemnity or excuse for taking the life of another, unless he makes it appear, by the preponderance of the evidence, that it was necessary for him to do so in order to protect his own life, or to protect his person from some grievous bodily harm; and, of course, where it appears that there were other probable means by which the shedding of human blood might have been avoided, it cannot, with any propriety, be said that there was any such necessity to take human life as would excuse the slayer. We do not think, therefore, that either of these exceptions can be sustained.

3 The sixth exception is in these words: “Because his honor erred in charging the jury, that the deceased having entered defendant’s house upon defendant’s invitation, it was the business of the defendant to have notified him (the deceased) to leave, or else he must make out a plea of self-defence, as if he had notified him.” It seems to us, that when the language here objected to is read in connection with that portion of the charge in which it appears, all objection to it must disappear. For the judge, while fully recognizing the sacredness of one’s home, and the right of the owner to protect it from all intruders, very properly drew a distinction between a case of a trespasser intruding himself into the dwelling house of another, and a case in which one enters the house of another by the invitation of the owner. For here the undisputed evidence was, that the deceased was urgently invited to the house of the prisoner for the purpose of engaging in a Christmas frolic, and that they did engage in a drunken debauch, which, doubtless, gave rise to the difficulty that terminated in bloodshed. It does not seem to us that the defendant can claim anything from that well recognized right which allows one to protect his house, where his invited guest was shot down in his own house, without any notice, even, to leave. This exception must, therefore, be overruled.

4 As to the third and fifth exceptions,1 we are somewhat at a loss to understand how they are pertinent to the present appeal. These exceptions seem to relate to so much of the charge as contained instructions to the jury in reference to the charge of murder; but as the defendant was convicted of manslaughter only, we do not see what application they can have to the present appeal. For, even if we could hold'that the jury were improperly instructed as to the charge of murder (which, however, we must say is not the case), we are unable to perceive how such error (if there was error) could affect an appeal from a conviction of manslaughter, which practically amounts to an acquittal of the charge of murder. The language objected to in the third exception is taken from that portion of the charge in which the judge was explaining the distinction between murder and manslaughter, and the instruction there given, in case the jury took a certain view of the facts, that it would be manslaughter and not murder, can in no sense be regarded as charging on the facts, as it did not intimate in the slightest degree what was the judge’s opinion of such facts, but expressly informed the jury that if they believed certain facts, then it would be manslaughter. The language upon which the fifth exception is based manifestly relates to the charge of murder, of which the defendant was practically acquitted, and could not possibly relate to the charge of manslaughter, of which the defendant has been convicted, for certainly malice is not an ingredient in the last named offence. Besides, the mere failure to repeat what had been already stated to the jury was certainly no error of law.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.

1 These exceptions were as follows: III. Because his honor errecl in charging the jury as follows : “I say to you, that if the defendant here did as he says he did, and, not having any malice, got up from a table at which the deceased was sitting, for the purpose bona fide of avoiding a difficulty, and the conduct of the deceased was so provoking as to ai'ouse his blood, to temporarily lose control of his passions, then it would be manslaughter.” V. Because, when his honor was requested to charge the jury, “That although the law ordinarily presumes malice from the use of a deadly weapon, this is not the case where the State introduces testimony as to the facts and circumstances attending the homicide,” and having said, “I so charge you,” he erred when he qualified it by addiug, “But you take it in connection with what I said to you in the direct charge,” without stating or indicating what part of the direct charge was to affect the proposition of law embodied in said request, or in what manner or to what extent it was to be affected.