The opinion of the Court was delivered by
Mr. Justice Jones.
Appellant, having been convicted of murder and sentenced, seeks to reverse the judgment on the grounds now considered.
1 1. It is excepted that the Circuit Court erred in refusing to quash the indictment on the ground that it concluded with the words “against the peace and dignity of the same State aforesaid,” instead of with the words “against the peace and dignity of the State,” as required in art V., sec. 31, of the Constitution. The motion to quash was properly overruled. All the words required by the Constitution are in the indictment, and the additional words “same” and “aforesaid,” may be regarded as surplusage. State v. Robinson, 27 S. C., 618.
2 2. After the motion to quash was-refused, appellant gave notice of intention to appeal, and then objected to proceeding with the trial until the appeal was disposed of. He was ordered to trial. In the second and third exceptions, this ruling is complained of on the ground that the notice of appeal from the order refusing to quash the indictment operated as a stay of the proceedings. The appellant on the argument very properly did not press these exceptions. An order overruling a motion to quash an indictment is not appealable. State v. Burbage, 51 S. C., 284.
3 3. It is excepted that the Circuit Judge erred in charging the jury as follows: “So, where an act of that kind is done, where a person is killed, and nothing appears but the fact of the killing, the law presumes that that is a killing with malice, and that is what is meant by implied malice.” The exception is general, and points out no specific error in the language quoted. Immediately preceding the language objected to, which is necessary to explain it, the Circuit Judge charged these words: “Malice implied is the same thing as any other kind of malice. The word ‘implied’ refers to the manner in which the malice is shown or. proven, and, in general, the law implies or presumes malice from the intentional and voluntary doing of an *242act that is wrongful, where there is no justification or excuse for the act;” then follows the language complained of. The charge amounted to nothing more than saying that malice is implied from an intentional killing, without justification or excuse. This exception is overruled.
4 4. The remaining exception alleges error in charging the jury these words: “If you have a reasonable doubt, as between the fact of his acting under a strong provocation, exciting sudden heat and passion, and the deliberateness which would show malice, give the defendant the benefit of the doubt, and find the lesser rather than the greater.” The exception is faulty, in not pointing out wherein there was error. In the argument, appellant contends that, by this charge, the jury was precluded from rendering any verdict except one for murder or one for manslaughter. But we can not so hold. The charge correctly informed the jury as to their duty in case they had a reasonable doubt as between murder or manslaughter, and this charge was immediately followed with instruction, that “if a doubt arises as between any crime at all and his innocence, you are bound to give him the benefit of that doubt, and find him not guilty.”
The judgment of the Circuit Court is affirmed, and the case is remanded, in order that a new day may be assigned for the execution of the sentence imposed.