State v. McIntosh , 39 S.C. 97 ( 1893 )

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, eleven 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 the 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 zeal 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 by 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.