State v. Lowry

Goolsby, Judge

(dissenting):

I respectfully dissent. The evidence, when viewed in the light most favorable to the defendant Eric Douglas Lowry, required a jury charge of voluntary manslaughter.

To warrant the refusal of a charge of voluntary manslaughter where the defendant is charged with murder, there must be no evidence tending to reduce the crime from murder to voluntary manslaughter. State v. Damon, 285 S.C. 125, 328 S.E. (2d) 628, cert. denied, 474 U.S. 865, 106 S.Ct. 187, 88 L.Ed. (2d) 156 (1985), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E. (2d) 315 (1991) (Toal, J., concurring). Voluntary manslaughter is defined as the unlawful killing of another human being in a sudden heat of passion upon a sufficient legal provocation. State v. Davis, 278 S.C. 544, 298 S.E. (2d) 778 (1983). Although words alone are generally insufficient to constitute a sufficient legal provocation where the killing is accomplished by means of a deadly weapon [State v. Gardner, 219 S.C. 97, 64 S.E. (2d) 130 (1951)], words accompanied by hostile acts may be sufficient to reduce a charge from murder to voluntary manslaughter. State v. Mason, 115 S.C. 214, 105 S.E. 286 (1920); McAnich and Fairey, THE CRIMINAL LAW OF SOUTH CAROLINA at 155 (2d ed. 1989); see Gardner, 219 S.C. at 105, 64 S.E. (2d) at 134 (a charge of manslaughter held warranted where the defendant said his wife “jumped on me” and “me and her got into it” since these expressions could be construed to mean that there was some overt, threatening act or a physical encounter had occurred just prior to the defendant’s stabbing of his wife).

As the majority notes when discussing the events that occurred outside the store, Thrower, a much larger man than Lowry, approached Lowry and accused Lowry of trying to get him sent to the penitentiary. Thrower then got “up in [Lowry’s] face” and the two “bumped chests.”

*538After Lowry entered the store, the majority fails to mention, Thrower told Lowry “he wasn’t shit [and] you think you are a big man because you got a gun.” Immediately following this, Thrower got up from where he was sitting and “started walking toward [Lowry] and asked him if he wanted to take it outside.” When Thrower got to within “arm’s reach” of Lowry, Lowry shot and killed him.

Aside from the events outside the store, the evidence of what occurred inside the store, that Thrower cursed, threatened, and menaced Lowry moments before Lowry shot and killed him, entitled Lowry to the manslaughter charge.

I do not attach to the jury’s finding that Lowry did not act in self-defense the significance that the majority does. While Lowry’s actions in loading and apparently test-firing his pistol after Thrower bullied him and before he followed Thrower into the store and in shooting Thrower in the head after he shot him in the chest weaken his claim of self-defense, these actions are, nonetheless, consistent with a person acting in the heat of passion. See State v. Gilliam, 296 S.C. 395, 397, 373 S.E. (2d) 596, 597 (1988) (“[The] jury may fail to find all the elements for self-defense but could find sufficient legal provocation and heat of passion to conclude the defendant was guilty of voluntary manslaughter.”).

Regarding the case relied on by the majority, State v. Gandy, 283 S.C. 571, 324 S.E. (2d) 65 (1984), it is not controlling here. The case involved the issue of whether involuntary manslaughter, not voluntary manslaughter, should have been charged when the indictment alleged murder. Moreover, Casey v. State, 305 S.C. 445, 409 S.E. (2d) 391 (1991), in expressly overruling State v. Patrick, 289 S.C. 301, 345 S.E. (2d) 481 (1986), a case which expressly relied on Gandy, necessarily overruled Gandy to the extent Patrick mirrors Gandy.

Like the majority, I do not reach the question of sufficient cooling time between the events outside and the events inside the store. The question, however, is ordinarily one for the jury. State v. Goodson, 140 S.C. 357, 138 S.E. 816 (1927).

I would reverse and remand for a new trial.