State v. McIntosh
39 S.C. 97
S.C.
1893
Check Treatment

Lead Opinion

The opinion of the court was delivered by

Mr. Justice Pope.

Singleton A. McIntosh, having been convicted of the murder of Edward N. Newby and duly sentenced, has appealed to this court to reverse such judgment. The report of this case will be accompanied by the charge of the presiding judge, together with the grounds of appeal, *107eleven in number. We will examine and pass upon these several exceptions in the order indicated by the appellant.

1 First. The first exception complains that the Circuit Judge erred in excluding W. C. Bobinson. from presentation to the .prisoner for acceptance or rejection as a juror to try the case. It seems that at the request of the solicitor he was sworn on his voir dire, and after answer by him to the usual questions as to relationship, expression of an opinion, bias or prejudice, he was asked by the solicitor if he was opposed to capital punishment, and to this he replied, “Well, I am inclined that way, sir.” The object of legislation in the matter of the examination of jurors is to obtain triers of issues in our courts free from those objections that relate either to prepossession in favor of or adverse to persons whose rights are on trial or to the laws of the land involved in such trials. It would be a mockery of justice to entrust the rights of a person on trial for crime in our courts into the hands of a jury so full of prejudice against him that proof of facts in his exoneration would produce no effect in his behalf. Nor would it be short of a shame to confide such issues in a capital case to one who was opposed to death as a punishment for crime. Very wisely our laws have confided the determination of whether a proposed juror is indifferent to the Circuit Judge. A long line of cases was set out in the opinion of this court in the case of State v. Haines, 36 S. C., 504, supporting this view. This court is committed by its decisions to the practice of the Circuit Judge in this case.

2 Second. The next exception is that there was error in the refusal of the Circuit Judge to charge this request of defendant: “While it is true that the defendant is required to prove that he was of unsound mind at the time of the homicide, by the preponderance of the evidence, it is also true that upon the consideration of the testimony of the whole case, the State’s as well as the defendant’s, if any reasonable doubt remain in the mind of the jury, the defendant is entitled to a verdict of not guilty.” The judge’s words'following immediately after the reading of the request were: “Before going any further, I will state the general proposition of law, that when *108the jury are informed by the testimony that the defendant has killed the deceased, and they know nothing else about it, the mere act of killing alone carries along with it the presumption of an unlawful intent, and would be sufficient to find a verdict of guilty, subject to qualifications that I will state later.” The presiding judge, preliminary to passing upon the requests to charge, said: “So it is not only a question of soundness or unsounduess of mind before you, but the whole question of guilty or not guilty.” And near the conclusion of the charge he had said: “The defendant is entitled to every reasonable doubt in this case, as in all other criminal cases — of every reasonable doubt.”

What is the object of a request to charge? Is it not to obtain an answer from the judge to the jury? This court holds parties to a cause to a just but rigid rule, in ease they seek to allege failure in a judge to embody in his charge to the jury some feature of the law bearing upon the decision of the issues involved in the trial, for we will not consider any such complaint, unless a request to so charge was made and refused. Then, if that be so, and when they seek a charge from the judge, and he fails to indicate to the jury his opinion, clear cut, upon the propositions of law contained in the request, are we not bound to enforce this right? We would not for a moment hold, nor do we hold, that the judge is bound to adopt the language of the request, or answer in his charge exactly when the proponent of the charge would prefer, but the judge must respond to the request by declaring the proposition, if relevant to the issues involved, sound or unsound. The proposition of law here asked to be charged was sound law, and no doubt the presiding judge so believed. If so, he should have so charged the jury, and his failure to do so was fatal error.

3 We will next consider under one head, the 3d, 4th, 5th, and 6th exceptions. At the outset, we may as well remark that our adhesion to the principles of law laid down by this court on the plea of insanity, in the case of State v. Bundy, 24 S. C., 439, is unshaken, notwithstanding all the learned research of the appellant’s counsel. The safety of society is too precious to be disregarded by courts. We fear counsel, in their *109zeal for the cause of their client, have overlooked some of the safeguards placed by that decision upon the liability to punishment of persons under this plea. It is not simply the power to distinguish right from wrong, that is prescribed. It is the power to distinguish right from wrong in the act itself — to recognize that the act complained of is either morally or legally wrong. When this power exists in a defendant at the bar of a court, on trial even for his life, he must answer for his acts. Such is the law of this commonwealth.

4 The next exception, the 7th, we cannot sustain. The “Case” discloses that the Circuit Judge announced this as the request to charge made by the solicitor. When he submitted it to the jury, he was very careful to call their attention to the fact, that he was not to be understood as referring to the facts of the case on trial. No possible harm could have accrued to the prisoner therefrom.

5 Our attention will now be given to the 8th exception of appellant. This we must overrule. The meaning of the judge is very plain. He was defining malice, and after he had done so, he gave as an illustration of that definition as applicable to the charge against the defendant.

6 The 9th exception relates to the use of words: “This case is one of murder against the defendant, beyond all question the gravest offence known to the law.” The appellant contends it was a charge upon the facts. We cannot so view it. The words are susceptible of a natural and just construction, utterly at variance with such an idea. Just after the judge had addressed the jury as “Gentlemen of the jury,” these words oocur. The case, as popularly understood, was the indictment, the charge, the prosecution. No jury would fail to understand it in that way. His words, used just afterwards, “beyond all question the gravest known to the law,” fasten this meaning. This exception cannot be sustained.

7 Nor do we find any difficulty in overruling the 10th exception. When the language of the judge is construed as a whole, all difficulty vanishes. We have hitherto, in our decisions, pointed out the danger of selecting a sentence or part of a sentence in a judge’s charge to. show an error committed *110by hiin. This is not just to the judge. Lastly, the 11th exception imputes error to the judge, in stating that the law does not excuse an assault and reduce it to manslaughter if a deadly weapon is used — a gun or a pistol, or anything of that kind. These words are only a part of the judge’s remarks to the jury, when they came out of their room asking fresh instructions, stating their difficulty in finding as between murder and manslaughter. He explained and defined murder, manslaughter, and self-defence. When these words are construed as a part of the whole charge, in connection with its other parts, and also in connection with his previous charge, it will be manifest that no injustice resulted to the prisoner. We overrule this exception also.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the cause remanded to the Circuit- Court for a new trial.





Concurrence Opinion

Mr. Justice McGowan.

I concur with Mr. Justice Pope.

2 The defendant’s second request to charge embodied a sound proposition of law. The Circuit Judge did not refuse to charge it, but he omitted to do so. This, I think, was error.

7 But, in my opinion, the defendant is entitled to a new trial upon the additional ground furnished by his 11th exception, as follows: “Because the Circuit Judge erred in charging that the law does not excuse an assault and reduce it to manslaughter if a deadly weapon is used — a gun or a pistol, or anything of that sort.” Taken by itself, it seems to me that it cannot be maintained that this is a correct definition of manslaughter; and while it may be true that in other parts of his charge preceding this, the judge had more fully defined manslaughter, yet, under the circumstances in which the language appealed from was uttered, it could hardly fail to mislead the jury. The Brief shows that after the jury had had the case in charge in the jury room for ten or eleven hours, they came into the court room after midnight, and asked further instructions from the judge. Speaking by their foreman, they said: “We cannot agree as between murder and manslaughter, and wish some further instructions on that point.” The judge then *111defined murder, manslaughter and self-defence. The foreman, apparently not satisfied, then said: “That’s just what’s the matter with us. Suppose one of those jurors insults me, and I walk in that room aud get a gun and shoot him down, would that be excusable?” To this hypothetical, but. very pregnant, question, the judge*replied: “No words, however aggravating, will justify or excuse an assault where a deadly weapon is used; but the apprehension of personal violence is a different thing. The law does not excuse an assault and reduce it to manslaughter if a deadly weapon is used — a gun or a pistol, or anything-of that sort.”

Considered in connection with the foreman’s question, the judge’s response, as it seems to me, can bear but one interpretation, viz., that where an assault with a deadly weapon results in homicide, it is murder and not manslaughter, and this irrespective of the circumstances under which the deadly weapon was used. This was said at the very close of the supplemental charge; it toas the last word, aud in response to the supposed ease put. After hearing this, the jury might well have considered that the defendant, McIntosh, having used a deadly weapon in his assault on Newby, the only thing left for them to do was to find him guilty of murder, which they did, with a recommendation to mercy. The judge’s charge, directly in response to their question, had substantially told them that such an assault cotild not be reduced to manslaughter. This definition was manifestly incomplete, for the reason, that it was directly in response, and limited, to a supposed case, aud, therefore, misleading; leaving out, as it did, the necessary element of the provocation, which might cause the use of a deadly weapon, and which might, in law, mitigate the offence; such sufficient provocation as the law recognizes and deems necessary to reduce the offence from murder to manslaughter.

In this connection it may be said that the doctrine of sufficient legal provocation has been recognized by the courts of both England and America from the earliest times. See 1 East P. C., 238, 242. On this point Mr. Justice Wardlaw, in delivering the judgment of the old court in the case of State v. Smith, 10 Rich., 346-7, said: “In the case before us the judge, *112speaking in reference to a homicide effected by a deadly weapon, defined voluntary manslaughter as to require that sudden heat and passion should not only exist, but be excited by ‘sufficient legal provocation’ — be justly excited by legal provocation. No doubt was left, that the meaning was to require a provocation of that kind which the law deems necessary to mitigate to manslaughter the guilt of a party who, upon such provocation, has slain a human creature by the use of a deadly weapon; and to require, further, that such provocation should be somewhat proportionate to the punishment inflicted, or, as is often expressed, should be reasonably sufficient. There is no doubt that this was a just exposition of the law, and it would not be easy to select a more suitable phrase to express the required provocation so as to guard against vulgar error than that of sufficient legal provocation.” Continuing, the learned judge says: “Deliberation and sufficient legal provocation are (in the report of the case being considered) respectively made to characterize murder and manslaughter, and using the terms in a strict technical sense, this is correct,” &o.

There can be no doubt that this is sound doctrine. The use of a deadly weapon cannot of itself prevent a homicide from being reduced to manslaughter. There must also be the absence of hot blood, sudden heat and passion, and sufficient legal provocation. Had the Circuit Judge, in the case before us, so charged in response to the foreman’s question, it is reasonable to suppose that the jury would have felt bound to consider, not simply the fact of the use of a deadly weapon, but the circumstances, if any there were, which provoked the defendant to use his'gun, and whether such circumstances furnished sufficient legal provocation, such as would in law mitigate the guilt to manslaughter. In the record there is evidence tending to show the circumstances under which McIntosh seized his gun, which was at hand, and shot the deceased; Newby’s violent conduct at the breakfast table — breaking dishes with a dipper; his threat, when remonstrated with, that he would “break up McIntosh in the same way;” his following McIntosh, who had quietly left the room; his approaching McIntosh while he had a gun in his hand; his still advancing after the first and *113missing shot had been fired. Under the judge’s final charge, all these and other circumstances were practically,withdrawn from the consideration of the jury; under the instruction as to an assault with a deadly weapon, the jury were in effect told that, no matter what the circumstances or what the provocation, a fatal assault with a deadly weapon is murder, and can not be manslaughter. The parties were good friends. There was not in the case the remotest intimation of malice from old grudge or other cause, but it was a sudden affray; and, therefore, while concurring with Mr. Justice Pope, I have no hesitation in holding that the defendant’s eleventh exception should be sustained, and a new trial granted on that ground also.





Dissenting Opinion

Mr. Chief Justice McIver,

dissenting.

2 While I concur in the conclusions reached by Mr. Justice Pope as to all the other grounds of appeal, I cannot agree with him in the view which he takes of the second ground. That ground is taken in these words: “Because the Circuit Judge erred in refusing to charge the jury as requested in defendant’s second request to charge;” and that request was couched in the following language: “While it is true that the defendant is required to prove that he was of unsonnd mind at the time of the homicide by the preponderance of the evidence, it is also true that, upon the consideration of the testimony of the whole case, the State’s as well as the defendant’s, if any reasonable doubt remain in the mind of the jury, the defendant is entitled to a verdict of not guilty.”

An examination of the judge’s charge will show that, after making some general observations designed to direct the minds of the jurors to the distinctions between the different grades of homicide, he took up the several requests to charge, and after reading them to the jury, made such comments upon them as seemed to him proper. But when he read this second request to charge, the idea seems to have occurred to him that he had omitted, in his general observations, a remark which he regarded as appropriate to the case; and, therefore, without sayiug anything at that time in response to the second request, he proceeded to make such general observations which is not *114pertinent to the present iuquiry. Now, if that was all that appears in the charge, in reference to the proposition involved in the second request, I would be inclined to hold, in a case involving such grave consequences as this does, that while the Circuit Judge did nob refuse to charge as requested, his omission to do so, after such request, would be error.

But that is not all that appears in the charge in reference to the proposition involved in the second request; for, after going over the several requests, the Circuit Judge, at the conclusion of his charge, used this language: “Gentlemen, I believe I have gone over this whole case. That question of unsoundness of mind is for you entirely. The defendant is entitled to every reasonable doubt in this case as in all other criminal cases — of every reasonable doubt.” When this language was used to the jury it does not seem to me that they could fail to understand that if upon a review of all the testimony in the case, as well that adduced by the State as that offered by the defendant, they entertained a reasonable doubt as to any material fact in the case, they must give the accused the benefit of such doubt. When, too, it is seen that the defendant’s plea was interposed in these words: “Nob guilty, by reason of unsoundness of mind at the time of homicide;” that a very large portion of the testimony was directed to the issue of insanity, as well as a considerable portion of the judge’s charge, I do not see how it is possible to doubt that the jury were made to understand fully, that if they eutertained a reasonable doubt as to the sanity of the accused at the time the homicide was committed, they were bound to acquit him; and that, as it seems to me, was the whole point of the second request, which was, in my judgment, substantially charged.

It is conceded, as I understand it, and properly conceded, that a Circuit Judge is not bound to charge a request precisely at the time, or in the phraseology in which it is presented; but if it embodies a correct proposition of law, it is quite sufficient if such proposition be presented to the jury at any stage of the charge. Here, when near the conclusion of the charge, the jury were instructed, that the question of insanity “is for you entirely,” and in the same connection, immediately after-*115wards, that “the defendant is entitled to every reasonable doubt in this case as in all other criminal cases — of every reasonable doubt,” it seems to me that the proposition embodied in the second request was much more effectively presented to the jury than if the judge had, upon reading the request, simply said, “I so charge you.”

I am, therefore, of opinion that the judgment of the Circuit Court should be affirmed.

Judgment reversed.