State v. Johnson

WALLER, Justice,

dissenting:

I respectfully dissent. In my opinion, under the facts presented here, Johnson was entitled to a jury charge on voluntary manslaughter.

Johnson testified that, during a verbal altercation, several individuals approached him in a threatening manner. When he told them he did not want to fight, they continued toward him still yelling so he pulled out the gun. When they came closer still, he fired the gun.¹

To warrant refusal of a request to charge voluntary manslaughter, there must be no evidence whatsoever tending to reduce the crime of murder to voluntary manslaughter. State v. Lowry, 315 S.C. 396, 434 S.E.2d 272 (1993); State v. Damon, 285 S.C. 125, 328 S.E.2d 628 (1985), cert. denied 474 U.S. 865, 106 S.Ct. 187, 88 L.Ed.2d 156, overruled in part on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). Although words alone may not constitute sufficient legal provocation, words accompanied by some overt, threatening act may be sufficient. Lowry, supra.

I find no distinction between the holding of the majority today and that in State v. Lowry, supra. In Lowry, we noted the defendant and victim were in a heated argument and “the decedent was about to initiate a physical encounter” when the shooting occurred. There, we found the failure to charge voluntary manslaughter reversible error. Here, the majority concedes there was evidence of a verbal altercation followed by one of the victims “demonstrating a willingness to fight.” I discern no tenable distinction warranting the denial of the charge to Johnson. Accordingly, I would reverse and remand for a new trial on the murder charge.

FINNEY, C.J., concurs.

1 . Two witnesses confirmed that one individual stepped out toward Johnson in a confrontational manner.