State v. Aughtry

May 1, 1897
Reporters:
, ,
Before:
Pope

Lead Opinion

This opinion was filed February 10,1897, but by order of Court remittitur was stayed until May 1, 1897.

Mr. Justice Pope.

Conway B. Oliver, while employed by the Southern Railway Company, was proceeding to the home of his wife’s parents, just beyond Shandon, on the evening of the 5th day of March, 1895, when he was shot to death. His body was found with his bucket bj’ his side and with two fish, which, no doubt, he had intended as a present to the family he was about to visit. Thomas C. Aughtry was arrested and charged with the murder. On an indictment therefor he was duly tried at the summer, 1895, term of the Court of General Sessions for Richland County, and the verdict of the jury was guilty of murder; but the presiding Judge, on motion, granted the prisoner a new trial. He was again tried at the fall term, for 1895, which resulted in a mistrial; but at the spring, 1896, term he was again tried, and the verdict of the jury was guilty *288of murder, accompanied by a recommendation to mercy, which, under our present law, required imprisonment in the state penitentiary during the whole period of his natural life. After such judgment he moved the Circuit Judge to grant him a new trial, which motion was denied. Then he appealed to this Court upon many grounds.

1 2 We will first consider his motion for a new trial to decide if the Circuit Judge was in error in the refusal thereof. The 24th, 25th, and 26th grounds of appeal relate to this issue, and are as follows: “24. For that, his Honor erred in refusing to grant the defendant’s motion for new trial, upon the ground, first, because his Honor misdirected and misled the jury to the prejudice of the defendant, and wittingly influenced the verdict as found by them, by failing to charge the jury in response to the additional instruction requested by them as to what would be the effect of a verdict of guilty, with recommendation to mercy, and what the effect of a- verdict of guilty of manslaughter; and in failing correctly to charge the jury the distinction between murder and manslaughter.” In his general charge to the jury, his Honor, Ernest Gary, as presiding Judge, has said: “You will first inquire if a murder was committed at that time (the 5th March, 1895.) In order to ascertain that fact it is proper I should define to you what constitutes murder in the eyes of the law. Murder is defined by the statute law of this State to be the killing of any person with malice aforethought, either express or implied. Now, don’t understand from that definition, Mr. Foreman and gentlemen of the jury, that there are two kinds of malice, express and implied; there is but one kiud of malice, but there are two modes by which you can ascertain whether or not there was malice. It can be expressed by word of mouth, by verbal declaration, or by such acts as lying in wait, or preconceived plans or plots, or it may be inferred, implied from the facts and circumstances surrounding the homicide. (When you have ascertained that there was malice — you have those different modes by which you *289may ascertain whether or not there was malice.) If yon find there was malice, then the killing is said to be, in the eyes of the law, murder.” Manslaughter was defined in the general charge thus: Manslaughter “is the unlawful killing of another without malice, either express or implied.” After the jury had retired to their room for consultation, and had there remained for several hours, the following note was sent by them to the Judge: “To his Honor, Judge Ernest Gary: We would like for you to explain the four verdicts mentioned in your charge to the jury, and particularly manslaughter. Respectfully submitted, Wm. Platt, foreman. Please answer to-night.” In response to this note the presiding Judge came into Court that night, and the following colloquy occurred: The Court (to the foreman): Have you agreed upon a verdict?” The foreman: “No, sir.” The Court: “Is your difference one of law or one of fact? Do you differ as to the law of the case?” The foreman: “Yes, sir; little.” The Court: “Is there any point of law you desire further instruction on?” The foreman: “We would like to know about manslaughter, the difference between that and murder in the first degree?” The Court: “Murder is defined under the statute law of this State to be the killing of any person with malice aforethought, either express or implied. From that definition you will see the element to constitute the crime of murder is that of malice, if done maliciously. Malice may be formed for any length of time, or may be formed immediately. Malice is evidenced by such acts as lying in wait, or threats or grudges, or any act which will show that the party had an ill will against the other, or it may be implied from the manner in which the killing took place — for instance, killing upon no provocation whatever, you might infer malice. Now, manslaughter differs from murder in this — -manslaughter is one of the charities of the law; whereas manslaughter will be unlawful, yet if the party’s mind was dethroned by sudden heat and passion, and he killed under such circumstances as that, although unlawfully done, the law comes in, and, ap-*290predating that the man’s mind was dethroned by reason of sudden heat and passion, it takes a liberal view, and reduces the crime from murder to manslaughter, it being done in sudden heat and passion upon sufficient legal provocation. If done with premeditation, that would make it murder. If one were to spit in another’s face, or from some other gross insult, on the impulse of the moment, the party would kill the other, although the killing would be unlawful, the law would take that charitable view, knowing human nature of such an one provoked, the reason being dethroned, and it would reduce the crime from murder to manslaughter. Under this indictment you can find one of four verdicts — guilty of murder, which would be death, or guilty with recommendation to mercy, which would reduce the punishment by reason of that verdict to imprisonment; guilty of manslaughter, or not guilty.” The Court (to the foreman): “Anything further?” The foreman: “No, sir.” The jury then retired. In the general charge, the presiding Judge had thus formulated his direction as to the verdict the jury in their discretion might render: “Now, under this indictment there are several forms of verdict you can find. You can find ‘guilty,’ which would be guilty of murder; or you can find a verdict of ‘guilty with recommendation to mercy’ — that is what is known as a special verdict, and that recommendation of itself changes the punishment. If you simply find ‘guilty,’ without recommendation to mercy, the penalty is that of death. If you recommend to the mercy of the Court, it changes the punishment to imprisonment in the state penitentiary for life. Or you can find a verdict, ‘guilty of manslaughter,’ which is the unlawful killing of another without malice, either express or implied; or you can find ‘not guilty.’ ” It seems to us that the jury were satisfied with the explanation given by the Judge both on the four forms of the verdict and also as to the distinguishing features of murder and manslaughter. Surely the Circuit Judge carefully distinguished in his definitions of the crimes of murder, of the one part, and manslaughter, of the *291other part. Illustration is a very happy method by a Circuit Judge of conveying to a jury the difference between the crime of murder and that of manslaughter, after he has once given them an exact legal definition of each. We do not see that the Circuit Judge was required, after having once carefully explained to the jury what the effect of a recommendation to mercy in a verdict of guilty of murder would be, to repeat it again in connection with the word “imprisonment.” That the jury after it had rendered its verdict should afterwards unite in an explanation of what they meant and understood as to the duration of the imprisonment which would follow such a verdict, should have no effect upon a judge, on a motion for a new trial, because of such an explanation. It would, it seems to us, be very unwise to be governed by such an explanation of the verdict after it has been published, for it is well- known that the grief of the family and friends of a prisoner, who has been sentenced to imprisonment for. life, would very naturally touch the sympathies of a jury, thereby causing them to be willing to obviate the same if possible. The Circuit Judge did not err in this matter.

3 The 25th ground of appeal is in these words: “25. For that-his Honor erred in refusing to grant the defendant’s motion for a new trial upon the ground, second: because during the progress of the trial, the solicitor was permitted to display, and did display, in the presence of the jury, a blue dress alleged to have been worn by Mrs. Oliver, in company with Aughtry, while alleged to have been plotting the assassination of Oliver; the said garment being irrelevant to the issues raised in the cáse, and defendant having been in no manner connected with it.” We must say that the mere fact that the solicitor was allowed to úntie a bundle in open Court, and take therefrom a blue dress, which appellant’s counsel thought corresponded in color with that worn by Mrs. Oliver on the day her husband was murdered, cannot be taken notice of by this Court as a sufficient ground for imputing error in the *292Circuit Judge in overruling a motion for a new trial. The “Case” fails to show that such blue dress was offered in testimony, though, no doubt, the solicitor might have been anxious to so offer it. We do not see how the jury could have been prejudiced by the sight of a blue dress, when witness after witness had testified that Mrs. Oliver did, on • the 5th day of March, 1895, wear a blue dress. The Circuit Judge did not err, as here complained of.

4 The 26th ground of appeal is in these words: “26. For that his Honor erred in refusing to grant defendant’s motion for a new trial, upon the ground, third: because the evidence was insufficient to warrant a conviction, and the verdict was against the manifest weight of the evidence.” This Court has so often expressed the conclusion that no alleged error as to the sufficiency of evidence, or its manifest weight, so far as the same enter into a refusal of a motion for a new trial by a Circuit Judge in a case on the law side of the Court below, will be considered by us, that it is deemed necessary only to refer in a general way to our previous decisions on this point. This Court can only hear questions of law — errors of law in appeals from the decisions of courts of law. This ground of appeal is dismissed.

5 We will next consider the grounds of appeal, the 27th, the 28th, and the 29th, wherein the appellant alleges error in the Circuit Judge in admitting certain testimony. The 27th is in these words: “For that his Honor erred in admitting, after objection raised, the testimony of F. B. Moore, who testified that Aughtry said, while exhibiting a note: ‘This is a ticklish point; she wants me to go to her room; I’ll be damned if I don’t, if I have to kill him;’ the same being irrelevant, but tending to prejudice defendant in the minds of the jury.” When this witness gave the testimony above quoted, he at once added: “I have no idea who he meant; he said ‘it was his girl.’ Didn’t know he was keeping a woman.” The “Case” fails to disclose that the defendant interposed any objection to *293this testimony when given, or that he made a motion to have the same stricken out. While it was irrelevant in the shape in which it appeared, this Court cannot protect persons who avoid the means of helping themselves. “The 27th ground of appeal is dismissed.

6 The 28th is in these words: “For that his Honor erred in admitting the testimony of Cindy Elkins as to the contents of the note alleged to have been received by her from Aughtry while he was in jail, the same not being the best evidence of its contents.” The “Case” showed that Cindy Elkins swore that she had lost the note referred to. Her testimony as to the contents of the lost note was competent. This 28th exception is overruled.

7 The 29th exception is in these words: “29. For that his Honor erred in admitting the testimony of Bessie Smith, a witness for the State, who swore that Aughtry said he ‘was going to Nebraska with his girl, and was going to make her husband bite the dust first,’ the same being irrelevant and prejudicial to the defendant.” We are quite sure that such testimony was prejudicial to the defendant. We scarcely think any married man, who shows such wantonness as to leave his lawful wife and go to Nebraska “with his girl,” could help being prejudiced in the eyes of an upright people by such brazen profligacy, and when to this is added the crime of the murder of the husband of his victim, thé prejudice .is heightened. But was this testimony irrelevant? The testimony was that he had declared that he did not love his wife; that Mrs. Oliver, the wife of the deceased, was the only woman he had ever loved; that he had been known to slap the face of his own wife when she quarreled with Mrs. Oliver. Oliver had been murdered, and it was sought in this trial to show that Aughtry had murdered him. Let this exception be overruled.

*2948 *293We will next consider the exceptions relating to alleged errors in the charge itself of the Circuit Judge: “1. For that his Honor, the presiding Judge, erred in saying *294to the jury, in the course of his charge: ‘I apprehend you will have but little trouble’ in coming to a con-elusion whether there was murder or not; I believe it was conceded by the first counsel who addressed you that the killing was a felonious one;’ in that he thereby charged upon the facts, and intimated his opinion with reference thereto.” The provision of the Constitution of 1895 is in these words, article V., section 26: “Judges shall not charge juries in respect to matters of fact, but shall declare the law.” This section of article V. of our present Constitution has very recently been passed upon by this Court in an opinion showing great research, in the case of Norris v. Clinkscales, 47 S. C., 517. One of the conclusions there announced was: “It would seem, also, that a judge would not be violating the constitutional inhibition, if he in his charge repeated the testimony as to undisputed facts or admitted facts, or stated their legal effect, or pointed out the different conclusions which might be drawn from them, or the inquiries they would naturally give rise to.” Now, in the language of the Circuit Judge complained of there does not appear that there is any statement of the testimony; he merely states that he apprehends the jury will have little trouble in reaching a conclusion whether there was murder or not; but he couples to this his statement that there was an admission of prisoner’s counsel that the homicide was a felonious one. It would be well to remember, in this connection, that the defense set up by the accused was that of an alibi, as is set out in his eleventh request to charge: “The defense set up in this case is that of an alibi. A prisoner or person accused of crime is said to set up an alibi when he alleges that at the time when the offense with which he is charged was committed he was ‘elsewhere’— that is, in a different place from that in which it was committed. If proved, it is a complete answer to the charge.” And the Circuit Judge charged this request is sound law. It seems to us, therefore, that in the case at bar the defendant’s counsel had admitted that Oliver was murdered, but *295interposed as the defense of his client an alibi. Viewed in this light, and remembering that part of the decision of Norris v. Clinkscales, supra, we have just quoted, this ground of appeal is dismissed.

9 The second ground of appeal is in these words: “For that his Honor erred in saying to the jury, in the course of his charge, lI know there is great prejudice among quite a number of people against conviction on circumstantial evidence, but that is wrong,’ in that he thereby gave to such evidence, in the minds of the jury, undue weight and effect, and charged upon the facts.” We are unable to agree that this portion of the charge of the Circuit Judge is subject to criticism. That circumstantial evidence is competent evidence in courts of justice is a rule of law. Being a rule of law, any prejudice against the same is contrary to law, and it was perfectly legitimate for the Circuit Judge to point out such error. How such a reference to this branch of the law of evidence should be construed into giving it undue weight and effect, we cannot perceive, nor could it in any way be said to be a charge upon the facts. This ground of appeal is dismissed.

10 The third ground of appeal is in these words: “3. For that his Honor erred in charging the jury that circumstantial evidence has just as much respect in law as positive evidence, provided it brings conviction to the minds of the juries; and that the test of circumstantial evidence is, does it satisfy you to a moral certainty that the crime charged in the indictment has been committed, and the defendant did it? and that, if so, tlie case of the State would be made out, and that it would be the duty of the jury to find a verdict of guilty.” So far as this exception relates to the estimate placed by the Circuit Judge upon the value of circumstantial evidence, he was entirely correct, but so far as this exception relates to the test of this kind of evidence, we will consider it fully hereafter in our consideration of the 8, 9, 10, 11, 12 grounds of appeal. This ground of appeal is overruled.

*29611 The fourth ground of appeal is as follows: “4. For that his Honor erred in charging the jury as follows: ‘The defendant by his plea denies the charge in the indictment, and as an affirmative defense sets up the plea of an alibi, which is, that he was at some other place than that at which the crime was committed at the time it was committed, and for that reason could not have committed the crime. For instance, if A is charged here with having committed a crime in the city of Columbia to-day, and he can show that he was in the city of Greenville at the time of the commission of the crime by the preponderance of evidence, then that is held in law to be a good plea, for the reason that it is impossible for one man to be in two places at one and the same time, and that being the case, he could not have committed the crime unless he was present;’ in that the said language was misleading to the jury, indicating to them that, in order to make out the defense of an alibi, the defendant should prove that he was in some other place than Columbia, and he thus violated the constitutional provision prohibiting a charge upon the facts.” It seems from the phraseology of this exception that this part of his Honor’s charge is considered objectionable by reason of the hypothetical case he selected to illustrate, his views of the law on this subject—alibi. By section 26 of article V. of our present Constitution it is made the duty of the Judge to declare the law—‘‘but shall declare the law.” In Norris v. Clinkscales, supra, this Court held that a Circuit Judge was debarred by the previous provision of section 26 of article V. of our Constitution from the use of the testimony itself in any cause pending before him in declaring the law of the case so pending, but that reference might be had to a hypothetical state of facts for this purpose. This is all that the Circuit Judge has done, and in doing so he has committed no error.

*29712 *296The 5th ground of appeal is as follows: “5. For that his Honor erred in refusing to charge the defendant’s second request to charge.” This second request to *297charge was as follows: “A reasonable doubt is ‘such-a doubt as, after the entire comparison and consideration of all the evidence, leaves your minds in that condition that you cannot say you feel an abiding conviction of the truth of the charge to a moral certainty,’ or a doubt for which you can give a reason.” The refusal of the Circuit Judge was couched in these words: “No. 2 is refused, for the reason that all the defendant is entitled to, uuder the law, is the instruction that the State must prove every material fact in the case beyond a reasonable’ doubt, and they cannot convict if they have a reasonable doubt as to any material fact in the case. In other words, the phrase ‘reasonable doubt’ is self-explanatory.” In his general charge, the Circuit Judge said: “The defendant has requested that I should charge what is a reasonable doubt. I have refused to charge that, Mr. Foreman and gentlemen, for several reasons. One is, I could not adopt the definition that defendant’s counsel submitted; and another reason is, that I do not think it is necessary to charge you more than that the defendant is entitled to the benefit of a reasonable doubt. I am free to confess that the law books are full of definitions of judges in their attempt to define what a reasonable doubt is; but I prefer to charge the jury simply that the defendant is entitled to the benefit of a reasonable doubt, assuming that you understand the English language, and that the term, the phrase, ‘reasonable doubt,’ is self-explanatory. Now, one of the definitions is, that it is a doubt growing out of the evidence, for which you can give a good, a substantial, reason. That is not any nearer to a definition of a reasonable doubt than we started with. Another is, it is a doubt growing out of the evidence, or a lack of evidence, for which a substantial reason can be given. That is no nearer to a definition. Another is, it is an honest hesitation of the mind growing out of the evidence, or for the lack of evidence, and not a fanciful doubt but a substantial doubt. This puts you no nearer a definition of a reasonable doubt. So I prefer, Mr. Foreman and gentle*298men of the jury, to leave it to a reasonable jury to say whether they entertain a reasonable doubt.” We apprehend that, after the Circuit Judge had given the jury the benefit of what others had said in their efforts to accurately define the meaning of this phrase, “reasonable doubt,” he was entirely just to himself and to the law in saying that the phrase itself was “self”-explanatory. This ground of appeal is dismissed.

13 The 6th ground of appeal is as follows: “6. For that his Honor erred in refusing to charge the defendant’s 4th request to charge,” which was, “the weight and effect of direct evidence depends mainly upon the credibility of the witnesses; while the weight and effect of the indirect facts in evidence depend not only on the credibility of the witnesses but upon the correctness of the inferences or hypotheses drawn from or based upon such facts; in addition to the truth of the indirect facts or circumstances in evidence, then inferences and deductions are essentially involved, liable to numerous causes of fallacy, some of them inherent to the nature of the mind itself. So that while the number of mistaken judgments from direct testimony is comparatively small, the inferences to be drawn from indirect testimony are almost infinite in variety and number.” The Circuit Judge used this language’ in declining this request: “No. 4 is refused, for the reason that the jury are the sole judges under the Constitution of the effect and weight of all evidence, either positive or circumstantial; and to charge in the language of this request would, in effect, be depriving the jury of their prerogative.” It is patent that in this request to charge there is involved an ingenious effort to poison the minds of the jury against a conviction based upon circumstantial evidence, as opposed to or based upon direct evidence. Indeed, if we may be pardoned the observation, there is an effort here to embark the jury upon that difficult task of an analysis of the effect of testimony as metaphysicians, and this task is somewhat *299beyond the powers of the ordinary juror. The Circuit Judge did not err even from his own standpoint.

14 The 7th ground of appeal is in these words: “7. For that his Honor erred in refusing to charge the defendant’s 5th request;” which was, “In this case there has been introduced no’ positive or direct testimony of any fact, except the killing of the deceased, and all the facts in evidence relied upon by the State as tending to criminate the defendant are of an indirect and purely circumstantial nature.” This request to charge was refused by the Circuit Judge, because if he had so charged it would have been in violation of section 26 of article V. of our State Constitution. An inspection of the language of the request shows this to be true. Let the exception be overruled.

15 We will next consider the 6th, 7th, 8th, 9th, and 10th grounds of appeal, as they all relate to circumstantial evidence. We will first quote these requests-to charge, and then the language of the Judge’s charge: “6. In determining the weight and degree of conclusions to be given to circumstantial evidence in judicial trials, certain rules or maxims of the law of evidence have been adopted for the guidance of the jury. 7. ‘In order to justify the inference of guilt from circumstantial evidence in criminal cases, first, each and every one of the inculpatory facts from which such inference is drawn must be proved fully, clearly, and to a moral certainty. If you entertain a reasonable doubt as to any such material facts, it is your duty to find a verdict of not guilty. 8. Secondly, in order to justify the inference of guilt from circumstantial evidence in criminal cases, you must be further satisfied that every material fact or circumstance from which such inference is drawn is consistent with every other fact or circumstance, and the guilt of the accused. For as all things which have happened were necessarily congruous and consistent, so it follows that if any established material fact or circumstance be irreconcilable with the guilt of the accused, such incongruity and inconsistency is sufficient to negative such guilt, *300even though such guilt coincide and agree with all other facts and circumstances to the minutest extent. So that if you find from the evidence that any material fact from which the inference of guilt is drawn is inconsistent with any other such material fact, or is inconsistent with the guilt itself, I charge you it is your duty to find a verdict of not guilty. 9. Thirdly, in order to justify the inference of guilt from circumstantial evidence, in criminal cases, you must be further satisfied that the facts and circumstances from which such inference is drawn are of a conclusive nature and tendency. The question for you to decide is not whether the accused is probably guilty of the offense charged, but the facts and circumstances must indicate his guilt to a moral certainty; and even if you believe from the evidence that the fáctsand circumstances established that the accused is probably guilty, but you further believe from the evidence that such probability falls short pf moral certainty, then I charge you it is your duty to find a verdict of not guilty. 10. Fourthly, in order to justify the inference of guilt from circumstantial evidence in criminal cases, the inculpatory facts and circumstances from which such inference is inferred must, to a moral certainty, actually exclude every hypothesis but that of the guilt of the accused, must to a moral certainty be incompatible with innocence, and incapable of explanation upon any other reasonable hypothesis than that of guilt. Such evidence is always insufficient where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true; so that if you can believe from the evidence that the facts and circumstances established do not actually exclude every hypothesis but the guilt of the accused, or are incompatible with his innocence, or can be explained upon any other reasonable hypothesis than that of his guilt, I charge you it is your duty to find a verdict of not guilty.” The Circuit Judge refused to charge these requests in the language of the same, but charged in these words: “This is what I conceive to be the law of this case with reference to *301the test of circumstantial evidence. The test of the sufficiency of circumstantial evidence in a criminal case is not whether it produces as full a conviction as would be produced by the positive testimony of a single creditable witness, but whether it satisfies the minds of the jury to the exclusion of every reasonable doubt. It is not necessary that it should demonstrate the guilt of the accused beyond the possibility of innocence, but it must exclude to a moral certainty every other hypothesis but that of guilt. I charge you that to be the test, the rule, with reference to circumstantial evidence. Each fact in the chain of circumstances must be proved by competent evidence, and each fact must be consistent with other facts in the case, and with the main fact sought to be proved. Now, for instance, the facts proved must be consistent with each other, and point directly to the guilt of the accused. If they point to the guilt of some one else, then the chain of circumstantial evidence would not hold, because it must point to the guilt of the accused; and if it points to the guilt of the accused, although circumstantial, with such certainty that satisfies you, to a moral certainty, of the fact sought to be proved, then it is your duty to act upon circumstantial evidence, and find a verdict accordingly. Now the chain of circumstantial evidence has been compared to an ordinary chain. For instance, suppose that chandelier is suspended from a chain; the strength of that chain is tested by the weakest link in it — in other words, the chain will hold just so much weight as the weakest link in that chain will bear, and as soon as it gives way the chain gives way. And so will the chain of circumstantial evidence — the sufficiency of it is tested by the weakest circumstance which is necessary to make out the theory of the State. Now, the question you will ask yourselves is this: Do these facts and circumstances point so directly to the guilt of the accused as not to admit of any reasonable doubt but that he is the guilty party. Are you morally certain, morally satisfied, that these facts and circumstances, which have been discussed *302in your presence so ably, point so directly to the guilt of the accused as not to admit of any other reasonable hypothesis than that of his guilt? If so, the theory of the State has been made out, and it would be your duty to convict; if you have got a reasonable doubt, the theory of the State would not be .made out, and it would be your duty to acquit.” It must be borne in mind that the presiding Judge had explained the necessity which existed that the evidence offered by the State should establish the corpus delicti, and also that, adopting the language of the request of the defendant, the Circuit Judge had previously defined the meaning of circumstantial evidence. When the substantive and vital principles which go to make up circumstantial evidence in criminal cases are considered, it will be seen that the Circuit Judge has correctly expounded them. We have taken the pains to compare his statement of them critically with the maxims on this subject embodied in the works of Mr. Starkie on Evidence, as found at pages 570 to 574, inclusive, of his first volume, and they have stood that test. A careful comparison of the requests to charge with the charge itself will show that the Circuit Judge has incorporated every idea therein; he has, wisely, we think, avoided the prolix presentation of these ideas as found in the requests to charge. All that a Circuit Judge is required to do, in passing upon requests to charge, is to give, “clear cut,” the principles therein embodied, choosing his own time and words in so doing. There is a living reality imparted to a’ charge when the Judge, naturally and in his own words, presents the vital principles of law which are considered important for the jury to know in a given case. In a solemn issue of life and death, what a terrible responsibility to the accused, and also to society, does the Circuit Judge bear! These exceptions are overruled.

The 13th ground of appeal is involved in what we have just considered, and needs no further attention.

The 14th ground of appeal is evidently based upon a misapprehension by the appellant of what was held by the Cir*303cuit Judge, for upon examining the “Case” we find the presiding Judge did charge that request, which was the 13th.

The 15th request to charge, relating as it does to defining a “reasonable doubt,” has already been considered by us in passing upon the 5th ground of appeal.

16 The 16th and 18th’ grounds of appeal -allege error in his Honor, the Circuit Judge, in refusing to grant the 15th and 17th requests to charge. These requests to charge insisted, in effect, that it was the duty of the State to prove a motive in the prisoner for committing the homicide. The Circuit Judge held that it was not necessary to prove a motive. State v. Coleman, 20 S. C., 441; State v. McIntosh, supra, show that he did not err in so holding.

17 The 17th ground of appeal is in these words: “17. For that his Honor erred in refusing the defendant’s 16th request to charge,” which was in these words: “16: The mere fact that a party so situated that an. advantage would accrue to him from the commission of a crime, amounts to nothing, or next to nothing, as a proof of his having committed it.” As to this request the Circuit Judge said: “No. 16 is refused, for the reason that I fail to see wherein this request has any bearing on the case, and to charge the same might tend to mislead or confuse the jury.” The Circuit Judge was quite fight in this decision, if the request to charge embodied an abstraction. This Court has repeatedly held that abstract propositions of law need not be charged by the Judge even if requested so to do. The jury was only empanelled to try the issues of that prosecution, and it might tend to confuse their minds to have fanciful questions injected into the solemn charge of the presiding Judge. Let this exception be overruled.

18 The 19th ground of appeal is as follows: “19. For that his Honor erred in refusing to charge the defendant’s 18th request to charge,” which was in these words: “18. Of all kinds of exculpatory evidence that of an alibi, if clearly established by unsuspected testimony, is the most satisfactory and conclusive. This defense, if the *304element of time be definitely and conclusively fixed, and the accused be shown to have been at some other place at the time, is absolutely incompatible with, and exclusive of, the possibility of the truth of the charge.” The Circuit Judge had already, as we have heretofore quoted, sustained the 11th request to charge on the subject of an alibi, and in his general charge had set forth the principles of law governing such a defense. He, therefore, had substantially already charged this request. It is overruled.

The 20th ground of appeal relates to his Honor having refused to define the meaning of the phrase, “reasonable doubt.” We have already passed upon this proposition. It is overruled.

So far as the 21st and 22d grounds of appeal are concerned, they are substantially presented in defendant’s motion for a new trial. We find in the “Case” that his Honor correctly defined “murder” and “manslaughter,” and, also, that his Honor did not confuse the minds of the jurors by his statement of the four forms in which their verdict might be rendered. Having already considered these matters, we decline to repeat our reasoning here. Let these exceptions be overruled.

19 Lastly, the 23d ground of appeal is in these words: “For that his Honor violated the’ constitutional provision in relation to charging upon the facts of the case in his manner of stating the testimony.” We have patiently passed upon all the grounds of appeal, not calling to mind the generality, of some of the exceptions, and the want of clearness in others. The office of an exception is well defined. The seriousness of this charge as it affects the appellant here, has caused us, of our own motion, to overlook some of these matters, but we refuse to consider this exception in its form. There is no reference to any particular charge of the presiding Judge touching the facts that is considered by the appellant as violative of the constitutional provision inhibiting Circuit Judges from charging juries upon questions of fact, and this Court certainly *305cannot be expected to look’ over the entire charge of the Judge to ascertain if he has done so. This ground of ap-peol is dismissed.

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

Mr. Justice Gary concurs in the result.



Concurrence Opinion

Mr. Justice Jones

concurring. I limit my concurrence in this case to the result only, because I do not approve wholly the grounds upon which the first exception is over.ruled. This exception seems to be overruled in a measure on the ground that Norris v. Clinkscales, 47 S. C., 517, announces a rule of law, that it is not a violation of art. V., sec. 26, of the Constitution, for a Circuit Judge, in charging a jury, “to repeat the testimony as to undisputed facts or admitted facts, or state their legal effect, or point out the different conclusions which might be drawn from them, or the inquiries they would naturally give rise to.” I concurred in the result only, in Norris v. Clinkscales, mainly because of this very language, which I thought, and still think, was not only unnecessary to the decision of that case, but was unsound. In almost every case before a jury there are admitted or undisputed facts, and the real contention very often is as to the proper inference or conclusion of fact to be deduced from undisputed facts, and it seems to me it would invade the province of the jury and violate the constitutional inhibition against charging juries “in respect to matters of fact,” for a judge to charge a jury in respect to undisputed facts, pointing out the different conclusions which may be drawm from them, or the inquiries they would naturally give rise to. What inference of fact may be deduced from an undisputed fact, is a matter of fact, and is often the only fact in controversy. The cases which seem to support the language used in Norris v. Clinkscales were cases under the Constitution of 1868, and may all be explained by giving’ attention to the fact that, under that Constitution, judges were allowed to “state the *306testimony.” It is unnecessary in this case to say more on this point. I merely wished not to be committed to an in-dorsement of the doctrine alleged to be announced in the language quoted from Norris v. Clinkscales. Mr. Justice Gary did not sit in that case, and concurs merely in the result in this case, and I feel assured that a majority of this Court are not now prepared to indorse the language of Norris v. Clinkscales, quoted. That matter must be regarded as still open.

.Notwithstanding this, however, the first exception is properly overruled. The contention of the State in this case was that Aughtry murdered Oliver because of his lust for Oliver’s wife. The defense was that Oliver was murdered for purpose of robbery by some one else than Aughtry, and sought to establish an alibi for Aughtry. It was manifest, therefore, that the language of the Circuit Judge complained of could not have been in the slightest degree prejudicial or harmful to the defendant, could not be regarded in any way as a charge in respect to matters of fact, but was merely a statement of the admission of counsel for defendant, tending to limit the issues of fact before the jury.





Rehearing

Petition for rehearing refused May 1st, 1897,

PER Curiam.

20 The petition for a rehearing in this case is based solely upon the ground that this Court, in its opinion affirming the judgment, had overlooked the fact that certain testimony, the admission of which constituted the basis of the 27th exception, was not objected to when it was offered, whereas the “Case” shows that such testimony was, in fact, objected to; and, though irrelevant in the shape in which it appeared, as stated in the opinion, the Court did not go on to consider whether the reception of such irrelevant testimony was hurtful to the appellant, as it is claimed should have been done. To understand precisely the question made by this petition, it is necessaay to reproduce here exactly what occurred in the Court below when the testimony was offered, as it appears *307in the “Case” as well as in the petition for rehearing, as follows: The witness, E. B. Moore, testified that the appellant said, after exhibiting a note, “I’ll be damned if this aint a ticklish point; she wants me to go to her room (objected to.) I’ll be damned if I don’t, if I have to kill him.” The witness immediately added, “I have no idea who he meant; he said it was his girl; didn’t know he was keeping a woman.” From this it will be seen that while objection was taken to the first part of this testimony — that which contained the invitation from the woman to go to her room— which might very well be regarded as irrelevant, and no.t hurtful to appellant, yet there was no objection to that part of the testimony expressing a determination “to kill him;” who, does not appear from this particular testimony, which was much more likely to prove hurtful to the appellant, as it might, when connected with other testimony in the case, have been regarded as a threat to kill the deceased, if it became necessary to carry out the lustful desires of appellant. It is, therefore, very easy to see how the Justice who prepared the opinion would have felt justified in using the language to which exception is taken in the petition for rehearing. For, while the testimony as to the woman’s invitation to go to her room, might be regarded as irrelevant, yet the subsequent testimony, practically showing a threat to take the life of some one, not being objected to, not only became competent, but might, when connected with other testimony in the case, become entirely relevant to the issue on trial.

It is manifest, therefore, that no material fact or principle of law has either been overlooked or disregarded, and hence there is no ground for a rehearing.

This case has received the careful consideration of this Court upon the statements found in the “Case” as prepared for argument here, as all other cases are, and must be, considered; and when we find, as we do find in this case, that a certain portion of the testimony which has been objected to, is irrelevant to the issue on trial, standing by itself, but *308which might become entirely relevant when connected with other testimony in the case, it is sufficient to hold, as was held, that such testimony, standing alone, is irrelevant, without proceeding to inquire whether such irrelevant testimony was calculated to injure the appellant, where, as in this case, it appears, from a careful re-examination of the case, that there was other testimony which, if believed, would tend to render the testimony objected to relevant. As to the other portion of the testimony which the “Case” does not show was objected to, and which thereby became competent, it is very easy to see how, when connected with other testimony in the case, it would become entirely relevant.

It is, therefore, ordered, that the petition for a rehearing be dismissed, and that the stay of the remittitur heretofore granted be revoked, and that the remittitur be sent down forthwith.