The opinion of the Court was delivered by
Mr. Justice Jones.
The appellant, under an indictment charging him with the murder of James E. Súber, was found guilty and sentenced to be hanged. His grounds of appeal relate wholly to the charge of the Circuit Judge. The charge and the exceptions thereto appear in the official report. A general summary of the facts which the testimony offered by the State tended to prove may make more clear the questions involved.
The deceased, James E. Súber, kept a store at Ryles [420] Ford, in Fairfield County. About 7 o’clock P. M., August 10th, 1896, defendant was in the store. Deceased having gone out of the store for a brief while, returning, saw defendant at his money drawer, and hollered at him. Defendant ran out of the store. One witness said that defendant after taking his hand out of the money drawer attempted to put it in his pocket, and some money fell on the floor. Deceased, after examining the drawer, followed defendant, and called out to him, “Hold on, Henry, you have been in my money drawer and taken my money. You had-no business to do it, and I want it.” Defendant walked on, and deceased overtook him a short distance from the store, and laid his hand on defendant’s shoulder from behind. Defendant turned, and deceased caught hold of the lapel of defendant’s coat, and demanded that he give up the money. Defendant denied having taken his money, and demanded to be turned loose. Deceased refused to turn him loose unless he would give up the money. They began to pull at each other, and in the scuffle deceased threw defendant down. They arose, and in the struggle following, defendant fired his pistol and jerked loose. Deceased attempted to seize defendant again, and defendant shot the second time. Deceased was told by a bystander to get his gun and kill defendant. Deceased started to his store, when defendant fired at him the third time, missing him. Defendant then moved off rapidly. Deceased soon reappeared from his store with a gun in his hand, but when told to pursue and shoot defendant, he said, “No, I was not mad’about his stealing my money; I only wanted it, and he has taken my money and shot me, but I will not shoot him now.” Deceased was wounded in two places, one ball entering the bowels from the right side, the other a little below the left nipple, and died next day. In his dying declarations, admitted in evidence, he said he saw defendant in his money drawer, and hollered at him; that defendant made one more rakes at the drawer, and ran out behind the counter and jumped out of the door; that he (deceased) went to the drawer and saw he had taken money; [421] that he followed him, put his hand in the collar of defendant’s coat, and told him to give him his money; that he demanded the money two or three times; that defendant wouldn’t give it up, and that he tripped defendant; that he had no idea of hurting defendant; that he tripped him up twice — that he didn’t intend throwing him down, but intended to scare the money out of him; that as he rose the •second time, defendant shot him; that he took his hands off defendant, being dazed, and attempted to change his position, but before he could do it, defendant shot him again; that he went in the store and got his gun and came to the side door, when defendant was twenty-five yards off. He further said that defendant attempted to bite him on the arm, and he told defendant if he did he would maul him. He further said that he had done wrong in putting his hands on defendant, but he had no idea defendant had a pistol; that defendant shot him from under cover, and he •did not see the pistol.
1 1. It is urged as the first ground of appeal that the Circuit Judge erred in charging that “the law will imply malice from any wanton, thoughtless, cruel or depraved act, any net going to show an intention on the part of the party which shows a heart devoid of all social instincts and fatally bent on mischief.” It was conceded in argument that this charge was theoretically correct, but it is claimed that it was inapplicable to the facts of the case, and that he should have charged the jury that the law creates no presumption of malice when all the facts and circumstances attending the homicide have been developed in the testimony. This exception is not well taken. It was ■quite applicable and appropriate in this case for the Judge in his charge to explain the meaning of implied malice, the indictment being for murder. The record further discloses that immediately after explaining implied malice, he expressly charged precisely as it is claimed he should have charged.
[422] 2 [421]*4212. It is contended that there was error in the following [422] charge: “Now, as I said before, if the testimony in this case, and you are the sole judges of that, satisfies you that the defendant here took the life of the deceased in sudden heat and passion, and upon sufficient legal provocation, and the deceased said anything or did anything to the defendant which was calculated to highly exasperate and inflame and arouse his passion, so that he had an uncontrollable impulse, and he was so inflamed with passion that he hardly knew what he was doing, and in that heat and passion he took the life of the deceased without malice, then you can find him guilty of manslaughter.” It is objected that this charge (1) prescribed a stricter rule than that required by law as to the degree of heat and passion necessary to reduce the killing from murder to manslaughter; (2) took from the jury the right to determine the' degree of heat and passion necessary to reduce the killing from murder to manslaughter; and (3) was in violation of art. 5, sec. 26, of the Constitution, forbidding Judges from charging the jury in respect to matters of fact. Of the second and third grounds above, nothing more need be said than that they are not tenable. The first ground deserves more extended notice. The Circuit Judge correctly defined manslaughter as the killing of any human being, without malice, in sudden heat and passion, and upon sufficient legal provocation. It is contended, however, that he was not authorized to go further, and add words indicating that the heat and passion should amount to an “uncontrollable impulse,”' and that passion should so inflame that “he hardly knew what he was doing.” In Desty’s Criminal Daw, § 128d, it is stated that adequate provocation and ungovernable passion must concur — that to reduce murder to manslaughter a provocation must be established as sufficient to render the passion irresistible. In Clark’s Criminal Daw, p. 165, the doctrine is laid down, “that the provocation must be such as the law deems adequate to excite uncontrollable passion in the mind of a reasonable man.” Mr. Bishop in his Criminal Daw, vol. 2, p. 386, § 697, says: “The sufficiency of the [423] passion to take away malice and reduce what would be murder to manslaughter is so much a question of law that it is difficult to say on the authorities how intense in fact it must be. * * * The passion must be such as is sometimes called irresistible, yet it is too strong to say that the reason of the party should be dethroned, or he should act in a whirlwind of passion.” So in Clark Crim. Daw, p. 167, it is said: “The provocation must deprive one of the power of self-control, but it need not entirely dethrone reason.” This is supported by the following citations: Territory v. Catton, 16 Pac., 902; Maher v. People, 10 Mich., 212; Brooks v. Com., 61 Pa. St., 352; Davis v. People, 114 Ill., 86. See, also, People v. Freeland, 6 Cal., 96. In the case of State v. Hill (N. C.), 4 Dev. & Bat., 491, relied on by appellant, Gaston, J., said: “We nowhere find that the passion, which in law rebuts the imputation of malice, must be so overpowering as for the time to shut out knowledge and destroy volition. All the writers concur in representing this indulgence of the law to be a condescension to the frailty of the human frame, which, during the furor brevis, renders a man deaf to the voice of reason, so that, although the act done was intentional of death, it was not the result of malignity of heart, but imputable to human infirmity.”
[424] 3 [423] “The provocation of the deceased must be the direct and controlling cause of the passion, and it must be such as naturally and instantly, to produce in the minds of persons ordinarily constituted, the highest degree of exasperation, rage, anger, sudden resentment or terror, rendering the mind incapable of cool reflection.” 9 Enc. Daw, p. 579. In State v. Smith, 10 Rich., 347, the passion which reduces a felonious killing to manslaughter is characterized as a “temporary phrensy excited by sufficient legal provocation;” and in State v. McCants, 1 Spear, *390, Judge Wardlaw speaks of this passion as “the violent impulse of anger outstripping the tardier operations of reason * * * provoked by sufficient cause.” It may be' concluded, therefore, that “the sudden heat and passion upon sufficient legal provocation,” [424] which mitigates a felonious killing to manslaughter, while it need not dethrone reason entirely, or shut out knowledge and volition, must be such as would naturally disturb the sway of reason and render the mind of an ordinary person incapable of cool reflection, and produce what, according to human experience, may be called an uncontrollable impulse to do violence. We do not think the charge of the Judge went beyond the limits above prescribed, and was, therefore, not error, in so far as his charge relates to acts which the law deems adequate to provoke such passion. But it is well settled in this State that where death was caused by the use of a deadly weapon (as in this case), provocation by words only, no matter how opprobrious and hard to be borne, would not be sufficient to reduce the killing to manslaughter. State v. Jacobs, 28 S. C., 29; State v. Levelle, 34 S. C., 129. Therefore, the Judge erred in charging that “if the deceased said anything to the defendant which was calculated to highly exasperate, &c.” But, though erroneous in this respect, it was most favorable to the prisoner, in view of the fact that deceased charged the defendant with stealing his money just before the fatal shot. The error was harmless, and, therefore, not reversible.
4 3. The third and fourth exceptions may be considered together. We think a reference to the charge as a whole on the subject of self-defense will show that the Judge committed no error. The expression that the party who claims self-defense must come into Court with clean hands, while not strictly appropriate, was so explained by other language as to show the jury clearly that the Judge meant nothing more than the law required, viz: that the party who sets up the plea of self-defense must be without fault in bringing on the necessity to take human life, for he said immediately afterwards: “You can not bring about a state of affairs on your own part which necessitates your taking the life of a human being, and then plead self-[425] defense.” See State v. Beckham, 24 S. C., 283. These exceptions are overruled.
5 4. The fifth exception is as follows: “V. For that his Honor erred in refusing and neglecting, when requested so to do by the defendant’s counsel, to charge the jury as to the right of private persons to arrest without a warrant, as laid down in sections 1 and 2 of Criminal Code, vol. 2, of the Revised Statutes of 1893.” As to this fifth exception, perhaps it is too general to require consideration; but, waiving this, does the record disclose that the Circuit Judge refused or neglected to charge any request presented to him in writing, as required by Rule XI. of the Circuit Court? It appears that at the beginning of the argument, counsel for defendant read to the Court and requested the Court to charge as therein laid down sections 1 and 2 of the Criminal Code, which are as follows: “Sec. 1. Upon view of a felony committed, or upon certain information that a felony has been committed, any person may arrest the felon and take him to a judge or trial justice, to be dealt with according to law. Sec. 2. It shall be lawful for any citizen to arrest any person in the night time, by such efficient means as the darkness and the probability of his escape render necessary, even if his life should be thereby taken, in cases where he has committed a felony, or has entered a dwelling house with evil intent, or has broken or is breaking into an out-house with a view to plunder, or has in his possession stolen property, or being under circumstances which raise just suspicion of his design to steal or to commit some felony, flees when he is hailed.” Rule XI. of the Circuit Court provides that “Before the argument of the case commences, the counsel on either side shall read and submit to the Court, in writing, such propositions of law as they propose to rely on, which shall constitute the request to charge, &c.” We do not think a request to charge presented in the manner described is a substantial compliance with this rule. See Molair v. Railway Co., 31 S. C., 510. The value of the rule requiring such requests [426] to be in writing, so as to promote accuracy and certainty, would be greatly impaired by holding that the reading of extracts from statutes, decisions, and text-books, with oral request that such be charged to the jury, is a substantial compliance therewith. Justice and its orderly administration will be promoted by insisting on compliance with the provisions of this rule. It may be that a case might arise in which the Court ex gratia would waive technical compliance with a rule made merely for the orderly conduct of the business of a Court. But in this case such necessity does not arise.
6 5. The sixth exception is as follows: “VI. For that his Honor erred in charging the jury as follows: ‘Now, gentlemen, I charge you, as matter of law, that if you see a party stealing your property, or if you see a party committing a larceny, you have a right to arrest that party,’ when he should have charged that a private individual could only make an arrest in the cases mentioned and prescribed in secs. 1 and 2 of the Criminal Code, Revised Statutes 1893.” At common law, a private person had the right to arrest, without warrant, any person who committed or attempted to commit a felony in his view. In State v. Anderson, 1 Hill, 212, the Court said, that in order to justify an arrest by private persons, the proof must show that a felony was committed, and that the prisoner was the perpetrator. Sec. 1 of the Criminal Code, quoted above, allows any person to arrest upon view of a felony committed, or upon certain information that a felony has been committed. In this case the evidence tended to show that defendant had stolen some money belonging to deceased, in his view, from a money drawer in deceased’s store, but no evidence was offered to show the amount of the money stolen. If the amount stolen was less than $20, then no felony was committed, unless the larceny was compound larceny. There was no evidence in the case that the store was used as a dwelling. Hence the jury may have concluded from the evidence that defendant had committed a simple petit lar[427] ceny. Such a larceny in this State is a misdemeanor and not a felony. Sec. 2 of the Criminal Code allows any citizen to arrest in the night-time under certain circumstances and for certain offenses, among others, when the offender “has in his possession stolen property.” The evidence tended to show that the larceny took place a short while before 7.30 P. M., August 10,1896, at which hour it appears deceased was shot. From this evidence alone, it cannot be said with certainty that the alleged arrest was attempted in the night-time, so as to make sec. 2 applicable. It seems clear, therefore, in view of the evidence in the case, that the Circuit Judge erred in instructing the jury, as he did, as to the right of any person to arrest for larceny committed, in failing to distinguish between larceny that is felony and a larceny that is misdemeanor. For a simple petit larceny, a private person has no right to arrest without warrant. It may seem hard that one has no right to arrest for a petit larceny of his own property, committed in his view, but such is the law. Whether the alleged arrest was legal or illegal, was a vital question in the case. From the charge of the Judge, the jury had a right to infer that deceased had the right to arrest defendant, and, therefore, defendant had no right to resist, and this may have controlled them in determining the question whether the defendant killed in malice, or in sudden heat and passion, upon the provocation of an unlawful arrest. While it may be murder, under certain circumstances, to kill in resisting an unlawful arrest, generally it is manslaughter only, if done in heat and passion, provoked by the illegal arrest, and not with malice.
7 6. The seventh exception alleges error in the following charge: “If you have a piece of property, Mr. Foreman, lying on that table, and I walk up and take the property in your presence, you have a right to repossess yourself of your property, and if I kill you while you are trying to repossess yourself of your property — if I kill you with malice aforethought, expressed or implied — then I am guilty of murder.” It is contended that the error here [428] consists in not charging the jury that a person, in such circumstances, could only repossess himself of his property in an orderly and quiet manner, and without a breach of the peace. In so far as the Judge instructed the jury that a killing with malice aforethought is murder, the charge is unobjectionable; but it was calculated to mislead the jury, to tell them that when a person takes the property of another in his presence, that the latter has the right to repossess himself of that property, without explanation that the exercise of such right must be without a breach of the peace. Under such circumstances, one could not lawfully resort to violence to regain his property. The law provides other adequate means to redress wrongs of that character more consistent with the peace and safety of society.
The remaining exceptions were not argued, and we content ourselves with overruling the same without extended consideration.
The judgment of the Circuit Court is reversed, and the case remanded for a new trial.
Mr. Justice Pope dissents.