The opinion of the Court was delivered by
Mr. Justice Bonham.
The appellant and his wife, Carrie S. Howell, were tried at the July, 1930, term of the Court of General Sessions for Sumter County on an indictment which charged them with the murder of E. Hart Williams. The woman was acquitted, the man was convicted and sentenced to electrocution. He appeals on numerous grounds of alleged error. But, as in our judgment, the case must go back for another trial on a cardinal question, it becomes immaterial to discuss any others.
Indeed, it would be fairer to all parties that we should not discuss them.
Underlying this tragedy is the network of a story of jealousy, of infidelity, of false statements of deceit, which led to the death of an innocent man. It would need the genius of a Poe or a De Maupassant to fathom the motives of the woman, who by her own confession led her husband to slay an innocent young man under the influence of the passionate jealousy and anger aroused by the false charge that the unfortunate victim, whom she had marked for destruction, had on several occasions forced his way into her room at night and criminally assaulted her. Her utterly impossible story was that she did not know the man; that her husband threatened to kill her if she did not point out the man to him; that under the compulsion of his threats she pointed him to Williams and he slew him. She, never appealed to the officers of the law, or to any one, indeed, for protection against her husband’s threats. Yet this woman was acquitted and the man was convicted and sentenced to death.
Neither of them had employed counsel when they came to trial; therefore the presiding Judge appointed able counsel to represent each of them.
On the trial the woman proved to be hostile to her husband, and by her testimony sought to, and succeeded, in casting the whole burden of the sordid tragedy upon him.
It is difficult to understand the psychology of the jury which could find the woman innocent and the man guilty.
The error which makes it necessary to reverse the judgment and sentence of death is set out in Exception 12, which challenges the definition of malice given by the presiding Judge in these words: “Malice is a term of art, gentlemen, used in the law books. It is any form or design of doing mischief which arises from hatred or revenge. But the legal definition is: ‘Malice is the wilful intentional doing of a wrongful act, knowing it to be wrong.’
Wilful, intentional and when a person does an act knowing it to be wrong, he intends to do it, it is malicious.”
This is not the definition of malice long accepted in this State and which was laid down by that eminent jurist, Judge David Lewis Wardlaw, in the case of the
State v. Doig,
2 Rich., 179. Lie used these words:
“In law, malice is a term of art, importing wickedness and excluding a just cause or excuse. It is implied from an unlawful act wilfully done, until the contrary be proved.”
Put into parallel columns, this definition and that given in the present case do not jibe. It is patent that the very heart of the definition of malice is eliminated from the'definition in this case. The very essence of malice is that the wrongful act must have been done intentionally
and without just cause or excuse.
The appellant in this case was deprived of the benefit of this wholesome and safeguarding principle of the law. The jury were limited to deciding whether he did a wrongful act, intentionally, knowing it to be wrong. There was no dispute that he had killed a man, which is a wrongful act; there was no dispute that he did it intentionally. The jury were never permitted to say whether there were just causes or excuses. Therefore the jury were bound by the definition of malice given them to find him guilty of murder. They were not allowed to consider whether he had an excuse that might justify them in finding him not guilty under a plea of self-defense, or which would reduce his offense from murder to manslaughter, or which would suffice to induce a recommendation to mercy. It is true that the defendant had planted his defense upon the plea of self-defense. He testified that he shot only when the deceased made a motion to draw a weapon; his hostile wife feebly corroborates this, and his daughter Gladys plainly substantiates it. If correctly advised as to the definition of malice, the jury might have concluded that, although the woman now repudiated her story that she had been ravished, nevertheless, she had not done so at the time of the killing, and so, when she pointed to the unfortunate
young Williams and said to her jealous husband, “this is the man who has so foully dealt with me,” he was so transported by the passion which swept over him at the sight of the ravisher of his wife that he was irresponsible, and so entitled to some consideration in mitigation of his offense. The concluding sentence taken from the definition in the
Doig case
is: “It (malice) is implied from an unlawful act wilfully done, until the contrary be proved.” It was the province of the jury under proper instruction to determine whether this implication of malice had been removed by the evidence, but they were given no opportunity to consider it. They were limited to the determination of the question whether the appellant did a wrongful act, intentionally, knowing it to be wrong.
It is argued that appellant may not complain of the charge because he stood upon the plea of self-defense, and the law of self-defense and that of manslaughter were correctly charged. We do not deem this argument sound. The error was of the most vital consequence, and we are unable to say what effect it had upon the minds of the jurors. The appellant had the right, as has any person on trial in our Courts, to have the law bearing on the crime with which he is charged correctly stated to the jury.
It is argued for respondent that the definition of malice given by the Judge is sustained by the case of
State v.
Crosby, 88 S. C., 98, 70 S. E., 440, 443. It is true that the definition of malice in that case by the Circuit Judge, as it is quoted, is along the line of that given in our case, and it is true that the verdict in that case was affirmed, but it is not correct to say that the Supreme Court affirmed the definition of malice there quoted. Mr. Justice Gary said, delivering the opinion of the Court: “When the charge is considered
as a
whole, it will be seen that this exception cannot be sustained.” The charge is not reported, but the inference is a natural one that somewhere in the charge a correct definition of malice was given. The exception states only the
“alternative” definition given by the Judge. In his dissenting opinion in that case Mr. Justice Hydrick said: “It seems clear to me that the definitions of malice given in the charge, which is correctly quoted in the sixth and seventh exceptions, were erroneous and misleading in the particulars pointed out in these exceptions. In
State v. Rochester, 72
S. C., 194, 51 S. E., 685, this Court held that a definition of malice similar to that contained in the sixth exception was erroneous, and reversed the judgment,
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The opinion of the Court was delivered by
Mr. Justice Bonham.
The appellant and his wife, Carrie S. Howell, were tried at the July, 1930, term of the Court of General Sessions for Sumter County on an indictment which charged them with the murder of E. Hart Williams. The woman was acquitted, the man was convicted and sentenced to electrocution. He appeals on numerous grounds of alleged error. But, as in our judgment, the case must go back for another trial on a cardinal question, it becomes immaterial to discuss any others.
Indeed, it would be fairer to all parties that we should not discuss them.
Underlying this tragedy is the network of a story of jealousy, of infidelity, of false statements of deceit, which led to the death of an innocent man. It would need the genius of a Poe or a De Maupassant to fathom the motives of the woman, who by her own confession led her husband to slay an innocent young man under the influence of the passionate jealousy and anger aroused by the false charge that the unfortunate victim, whom she had marked for destruction, had on several occasions forced his way into her room at night and criminally assaulted her. Her utterly impossible story was that she did not know the man; that her husband threatened to kill her if she did not point out the man to him; that under the compulsion of his threats she pointed him to Williams and he slew him. She, never appealed to the officers of the law, or to any one, indeed, for protection against her husband’s threats. Yet this woman was acquitted and the man was convicted and sentenced to death.
Neither of them had employed counsel when they came to trial; therefore the presiding Judge appointed able counsel to represent each of them.
On the trial the woman proved to be hostile to her husband, and by her testimony sought to, and succeeded, in casting the whole burden of the sordid tragedy upon him.
It is difficult to understand the psychology of the jury which could find the woman innocent and the man guilty.
The error which makes it necessary to reverse the judgment and sentence of death is set out in Exception 12, which challenges the definition of malice given by the presiding Judge in these words: “Malice is a term of art, gentlemen, used in the law books. It is any form or design of doing mischief which arises from hatred or revenge. But the legal definition is: ‘Malice is the wilful intentional doing of a wrongful act, knowing it to be wrong.’
Wilful, intentional and when a person does an act knowing it to be wrong, he intends to do it, it is malicious.”
This is not the definition of malice long accepted in this State and which was laid down by that eminent jurist, Judge David Lewis Wardlaw, in the case of the
State v. Doig,
2 Rich., 179. Lie used these words:
“In law, malice is a term of art, importing wickedness and excluding a just cause or excuse. It is implied from an unlawful act wilfully done, until the contrary be proved.”
Put into parallel columns, this definition and that given in the present case do not jibe. It is patent that the very heart of the definition of malice is eliminated from the'definition in this case. The very essence of malice is that the wrongful act must have been done intentionally
and without just cause or excuse.
The appellant in this case was deprived of the benefit of this wholesome and safeguarding principle of the law. The jury were limited to deciding whether he did a wrongful act, intentionally, knowing it to be wrong. There was no dispute that he had killed a man, which is a wrongful act; there was no dispute that he did it intentionally. The jury were never permitted to say whether there were just causes or excuses. Therefore the jury were bound by the definition of malice given them to find him guilty of murder. They were not allowed to consider whether he had an excuse that might justify them in finding him not guilty under a plea of self-defense, or which would reduce his offense from murder to manslaughter, or which would suffice to induce a recommendation to mercy. It is true that the defendant had planted his defense upon the plea of self-defense. He testified that he shot only when the deceased made a motion to draw a weapon; his hostile wife feebly corroborates this, and his daughter Gladys plainly substantiates it. If correctly advised as to the definition of malice, the jury might have concluded that, although the woman now repudiated her story that she had been ravished, nevertheless, she had not done so at the time of the killing, and so, when she pointed to the unfortunate
young Williams and said to her jealous husband, “this is the man who has so foully dealt with me,” he was so transported by the passion which swept over him at the sight of the ravisher of his wife that he was irresponsible, and so entitled to some consideration in mitigation of his offense. The concluding sentence taken from the definition in the
Doig case
is: “It (malice) is implied from an unlawful act wilfully done, until the contrary be proved.” It was the province of the jury under proper instruction to determine whether this implication of malice had been removed by the evidence, but they were given no opportunity to consider it. They were limited to the determination of the question whether the appellant did a wrongful act, intentionally, knowing it to be wrong.
It is argued that appellant may not complain of the charge because he stood upon the plea of self-defense, and the law of self-defense and that of manslaughter were correctly charged. We do not deem this argument sound. The error was of the most vital consequence, and we are unable to say what effect it had upon the minds of the jurors. The appellant had the right, as has any person on trial in our Courts, to have the law bearing on the crime with which he is charged correctly stated to the jury.
It is argued for respondent that the definition of malice given by the Judge is sustained by the case of
State v.
Crosby, 88 S. C., 98, 70 S. E., 440, 443. It is true that the definition of malice in that case by the Circuit Judge, as it is quoted, is along the line of that given in our case, and it is true that the verdict in that case was affirmed, but it is not correct to say that the Supreme Court affirmed the definition of malice there quoted. Mr. Justice Gary said, delivering the opinion of the Court: “When the charge is considered
as a
whole, it will be seen that this exception cannot be sustained.” The charge is not reported, but the inference is a natural one that somewhere in the charge a correct definition of malice was given. The exception states only the
“alternative” definition given by the Judge. In his dissenting opinion in that case Mr. Justice Hydrick said: “It seems clear to me that the definitions of malice given in the charge, which is correctly quoted in the sixth and seventh exceptions, were erroneous and misleading in the particulars pointed out in these exceptions. In
State v. Rochester, 72
S. C., 194, 51 S. E., 685, this Court held that a definition of malice similar to that contained in the sixth exception was erroneous, and reversed the judgment,
notwithstanding the trial Judge afterwards correctly charged the law of manslaughter,
because, said this Court, ‘the charge as to murder was just as explicit. The jury had no greater right to disregard the charge as to murder than that relative to manslaughter, and it is impossible to tell which may have influenced them in rendering their verdict.’ ”
The importance of a correct statement of law is emphasized in the case of
State v. Ferguson,
91 S. C., 235, 74 S. E., 502, 504. In that case the Circuit Judge said: “If one man kills another out of a malicious heart, it is murder. And a malicious heart, Mr. Foreman and gentlemen, is a heart that is full of sin; that is wrong with G.od and man. Malice — the lawbook’s picture is black. Artists have tried to draw it * * * and they picture the malicious heart in’ black, and they picture a lawful heart in white.”
On appeal the Supreme Court said: “His Honor was likewise unfortunate in departing from the approved and well-understood legal definitions of malice. It is well for the trial Judge to point out to the jury the difference between the popular and the legal meaning of the word. But a man’s heart may be full of sin. It may be wrong with God and man. It may be what some artists would depict as black. Yet, unless it prompts ‘the wilful or intentional doing of a wrongful act,
without just cause or excuse,’ it is not a legally malicious heart."
(Italics added.)
In the case of
Kibler v. Southern Ry., 62
S. C., 252, 40 S. E., 556, 563, a civil case, the correct definition of malice
was brought in question. The language excepted to was this; in defining malice, the Judge said:
“ ‘Any malice does not necessarily import ill will, or prejudice, or anything of that kind. The intentional doing of any unlawful act would be construed malicious/ — the special error complained of being in the words which we have italicized. This, we think, states the rule in stronger terms than are justified either by principle or authority. One may intentionally do an act which proves to be unlawful without the slightest design to do a wrong to any one. * * * The rule is more correctly stated in
State v. Doig, 2
Rich., 182, by Judge Wardlaw, as follows:
“ ‘In law, ‘malice’ is a term of art, importing wickedness, and excluding a just cause or excuse. It is implied from an unlawful act wilfully done until contrary be proved.’ ”
Judge Mclver, who delivered the opinion of the Court in the
Kibler case,
quoted and approved the opinions in the cases of
State v. Alexander,
14 Rich., 253;
State v. Toney,
15 S. C., 412-413;
Avinger v. Railroad, 29
S. C., 265,
7
S. E., 493, 13 Am. St. Rep., 716. He quoted with approval the following: “This statement of the rule was recognized and followed in
State v. Alexander,
14 Rich., at page 253, where Mr. Justice Inglis, in delivering the opinion of the Court, after stating the rule as above, adds these words: ‘Clearly importing that said act may be wilful without being actually malicious.’ ”
It seems to us that it would be a dangerous menace to the safe and orderly administration of the criminal law in this State if this Court should directly, or by indirection, approve the definition of malice disputed and challenged here.
Accordingly, it is the conclusion of this Court that the judgment and sentence of the Court below should be reversed and a new trial had.
It is so ordered.
Mr. Chiee Justice Brease and Mr. Justice Cothran concur.