Tbis is tbe same case that was before us at tbe Fall Term, 1942, reported in
On tbe present trial, as on tbe former, Tbomas (Fat) McLean was a witness for tbe State. His testimony now is quite different from wbat it was then. It is much more damaging to tbe defendant and in many respects in conflict witb wbat be said on tbe original bearing.
On cross-examination, he repudiated much of bis testimony given on tbe former trial, and denied giving it. Whereupon tbe defendant “for tbe purpose of impeachment and contradiction of tbe State’s witness, Tbomas (Fat) McLean, offered bis testimony at tbe former trial of tbis case, as contained in tbe mimeographed transcript of tbis case on appeal to tbe Supreme Court, Fall Term, 1942.” Objection by tbe State; sustained; exception.
Presumably, tbe basis of tbe ruling was want of identity or proof of tbe record, but it is to be observed, according to tbe transcript, tbe defendant “offered bis testimony at tbe former trial of tbis case,” and its accuracy or the authenticity of tbe record seems not to have been mooted. At least, such is tbe impression gained from tbe agreed statement of case on appeal. Moreover, it appears from an examination of tbe mimeographed record offered by tbe defendant that tbe “statement of ease on appeal,” as therein contained, was signed by defendant’s counsel; that service was accepted by tbe solicitor and no countercase was served or exception filed thereto, wbicb thus constituted it tbe statement of case on appeal by operation of law, and that it purports to recite “all tbe evidence”' in tbe case. It is a part of tbe record of tbis case on tbe former appeal, and is so certified by tbe clerk of Lee Superior Court, tbe trial court in both instances.
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The defendant was within his rights in asking the witness if he did not testify to a different state of facts on the original hearing, and “his testimony at the former trial of this case” was competent as tending to impeach him.
S. v. McLeod,
There is another exception, one to the charge, which deserves attention. As the court was concluding its instructions to the jury, the following expression was used:
“If you are satisfied from the evidence in this case that the killing of the deceased was without malice, but the prisoner has failed to satisfy you that the killing was not unlawful, it would be your duty to return a verdict of guilty of manslaughter.”
Counsel for defendant insists that this instruction presupposes an intentional killing with a deadly weapon, whereas the jury alone on the evidence in the case was competent to make such determination. The point seems to be well taken. It is provided by C. S., 564, that the trial court shall not intimate or give an opinion to the jury whether a fact has been fully or sufficiently proved, this being the true office and province of the jury.
S. v. Oakley,
Nor would the fact that the jury returned a verdict of guilty of murder in the second degree cure the error, even though it went only to the charge of manslaughter.
S. v. Newsome,
True it is, that upon the establishment or admission of an intentional killing of a human being with a deadly weapon, the law casts upon the defendant the burden of satisfying the jury that the killing was without malice if he would escape a conviction of murder in the second degree, and that it was justifiable if he would avoid a conviction of manslaughter.
S. v. Sheek,
It results from what is said above that the defendant is entitled to another hearing. It is so ordered.
New trial.