The opinion of the court was delivered by
Mr. Justice McIver.
The defendant was indicted for, and convicted of, the murder of his wife, and judgment having been entered on the verdict, he appeals upon the following grounds : “1st. Because his honor erred in charging the jury that ‘malice will also be inferred from the use of a deadly weapon,’ and that intent and malice are one and the same thing; when there is no presumption or inference of law, unless it is a natural and reasonable presumption from the facts proved. 2nd. Because the charge of his honor, ‘that no words, however cruel, and the man, no matter how great the heat and passion may be, who slays his fellow-man upon no other provocation than mere words, is guilty of murder,’ is not in accordance with the modern doctrine of our law, was not applicable to the case, and was very misleading to the jury. 3rd. Because his honor erred in charging the jury that every death that results from the unlawful act of another is murder. 4th. Because the charge of his honor was otherwise contrary to law.”
[127]*127The charge of Judge Aldrich, before whom the prisoner was tried, is set out in the “Case,” and should be incorporated in the report of this case. We will therefore proceed to consider the several grounds of appeal in their order as stated, only referring to such portions of the charge as will be necessary for a proper understanding of the questions raised and considered. ,
1 The first ground presents two questions : 1st. Whether there v'as any error in saying to the jury that “malice will also be inferred from the use of a deadly weapon.” 2nd. Whether intent and malice are one and the same thing, provided it shall first appear that the judge so instructed the jury. As to the first question, it will be observed that the words there quoted were not used by the Circuit Judge, but are taken from the language of the solicitor’s ninth request, to which the judge responded in these words: “That is a presumption or rule, not so much of law as of common sense. Ordinarily, if a man in his senses uses a deadly weapon, in a way calculated to do greatjiarm to another person, the law and common sense says_that he intended the result which his act brought ajjout.” The rule is well settled that every sane man is presumed to intend the ordinary and probable consequences of any act which he purposely does; and this rule is applied even in capital cases. 3
Greenl. Evid., §§ 13, 14. This is plainly what the judge meant by the language he used, and therefore there was no error in this respect. But even if it be assumed that the judge must be regarded as adopting the language used in the solicitor’s ninth request, quoted above, we still think there was no error. In 2 Bish. Cr. Law, sec. 680, it is said: “As a general doctrine, subject, we shall see, to some qualification, the malice of murder is conclusively inferred from the unlawful use of a deadly weapon, resulting in death.” And to the same effect see 3 Greenl. Evid., §§ 145, 147. This doctrine has also been recognized in this State. See State v. Toohey, 2 Rice Digest, 105; State v. Ferguson, 2 Hill, 619; State v. Smith, 2 Strob., 77. It is true that the inference of malice drawn from the use of a deadly wea-\ pon may be rebutted by testimony, but in the absence of any such testimony malice may be and is inferred from the use of a deadly weapon, causing death.
[128]*1282 The second inquiry arising under the first ground of appeal is as to the identity of intentyvith malice. But we do not find anything in the charge of the judge which warrants the idea that any such instruction was given to the jury. The jury were instructed that if the act which produced death be
attended with such circumstances as indicate a wicked, depraved, and malignant spirit, the law will imply malice without reference to what was passing in the prisoner’s mind at the time, and this was good law, as it was taken, word for word, from the opinion of the court in State v. Smith, 2 Strob., 77.
3 The second ground of appeal likewise presents three inquiries : 1st. Whether provocation by words only will be sufficient to reduce a killing from murder to manslaughter. 2nd. Whether the language complained of in. this ground was applicable to the case. 3rd. Whether it was misleading to the jury. We will first consider the last two questions, which are really one, for we-suppose that the language objected to as misleading is thought to be so because not applicable to the case as made by the testimony. But as none of the testimony is incorporated in the “Case,” and the record does not furnish us with even a general outline of the circumstances attending this deplorable tragedy, it is impossible for us to say that these remarks were either inapplicable to the case made, or calculated to mislead the jury. On the contrary, we are bound to assume that they were applicable, as we cannot suppose that the Circuit Judge, in instructing the jury as to their duties in so grave a case, would allow himself to indulge in general observations that had no application to the cáse, and might therefore tend to distract the minds of the jury from the real issues they were to pass upon.
4 Turning, then, to the first inquiry, it will be observed that the judge, after explaining to the jury the difference between murder and manslaughter, used the language objected to, probably for the purpose of disabusing their minds of what seems to be a popular impression, that where the killing is done in sudden heat and passion, the crime will be manslaughter and not murder, without reference to the provocation received. It was, then, very natural for him to go on and explain the nature [129]*129of such provocation as would or would not be sufficient to reduce the killing from murder to manslaughter. It was in this connection that the jury were instructed, correctly as we think, that provocation by words only, no matter how opprobrious, would not be sufficient. That this has been the law of this State from time immemorial cannot be questioned, and we are not aware that any such modern doctrine as that contended for has ever been recognize!^ in this State. On the contrary, one of the recent decisions of this court (State v. Jacobs, 28 S. C., 29) expressly holds the contrary. This broad statement of the doctrine must be understood as applying to a case where the death was caused by the use of a deadly weapon, as it may be different where the death results from the use of some agency not likely to produce death, as, for example, from a blow with the fist. But although, as we have said, there is nothing in the record furnished us to show the circumstances attending the homicide, yet the fact that the death in this instance was caused by the use of a deadly weapon sufficiently appears, as well from the judge’s charge as from the agreement to amend the ‘-Brief,” made at the hearing, by stating that the prisoner fired two shots. We do not think, therefore, that the second ground of appeal can be sustained.
5 The third ground of appeal rests upon a misconception of the judge’s charge. Indeed, it seems to be conceded in the argument of appellant’s counsel, that the judge did not state, in terms, to the jury the proposition there excepted to, but that such is the inference to be drawn from the language used by him. We do not think that any such inference could properly be drawn from the language used.
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The opinion of the court was delivered by
Mr. Justice McIver.
The defendant was indicted for, and convicted of, the murder of his wife, and judgment having been entered on the verdict, he appeals upon the following grounds : “1st. Because his honor erred in charging the jury that ‘malice will also be inferred from the use of a deadly weapon,’ and that intent and malice are one and the same thing; when there is no presumption or inference of law, unless it is a natural and reasonable presumption from the facts proved. 2nd. Because the charge of his honor, ‘that no words, however cruel, and the man, no matter how great the heat and passion may be, who slays his fellow-man upon no other provocation than mere words, is guilty of murder,’ is not in accordance with the modern doctrine of our law, was not applicable to the case, and was very misleading to the jury. 3rd. Because his honor erred in charging the jury that every death that results from the unlawful act of another is murder. 4th. Because the charge of his honor was otherwise contrary to law.”
[127]*127The charge of Judge Aldrich, before whom the prisoner was tried, is set out in the “Case,” and should be incorporated in the report of this case. We will therefore proceed to consider the several grounds of appeal in their order as stated, only referring to such portions of the charge as will be necessary for a proper understanding of the questions raised and considered. ,
1 The first ground presents two questions : 1st. Whether there v'as any error in saying to the jury that “malice will also be inferred from the use of a deadly weapon.” 2nd. Whether intent and malice are one and the same thing, provided it shall first appear that the judge so instructed the jury. As to the first question, it will be observed that the words there quoted were not used by the Circuit Judge, but are taken from the language of the solicitor’s ninth request, to which the judge responded in these words: “That is a presumption or rule, not so much of law as of common sense. Ordinarily, if a man in his senses uses a deadly weapon, in a way calculated to do greatjiarm to another person, the law and common sense says_that he intended the result which his act brought ajjout.” The rule is well settled that every sane man is presumed to intend the ordinary and probable consequences of any act which he purposely does; and this rule is applied even in capital cases. 3
Greenl. Evid., §§ 13, 14. This is plainly what the judge meant by the language he used, and therefore there was no error in this respect. But even if it be assumed that the judge must be regarded as adopting the language used in the solicitor’s ninth request, quoted above, we still think there was no error. In 2 Bish. Cr. Law, sec. 680, it is said: “As a general doctrine, subject, we shall see, to some qualification, the malice of murder is conclusively inferred from the unlawful use of a deadly weapon, resulting in death.” And to the same effect see 3 Greenl. Evid., §§ 145, 147. This doctrine has also been recognized in this State. See State v. Toohey, 2 Rice Digest, 105; State v. Ferguson, 2 Hill, 619; State v. Smith, 2 Strob., 77. It is true that the inference of malice drawn from the use of a deadly wea-\ pon may be rebutted by testimony, but in the absence of any such testimony malice may be and is inferred from the use of a deadly weapon, causing death.
[128]*1282 The second inquiry arising under the first ground of appeal is as to the identity of intentyvith malice. But we do not find anything in the charge of the judge which warrants the idea that any such instruction was given to the jury. The jury were instructed that if the act which produced death be
attended with such circumstances as indicate a wicked, depraved, and malignant spirit, the law will imply malice without reference to what was passing in the prisoner’s mind at the time, and this was good law, as it was taken, word for word, from the opinion of the court in State v. Smith, 2 Strob., 77.
3 The second ground of appeal likewise presents three inquiries : 1st. Whether provocation by words only will be sufficient to reduce a killing from murder to manslaughter. 2nd. Whether the language complained of in. this ground was applicable to the case. 3rd. Whether it was misleading to the jury. We will first consider the last two questions, which are really one, for we-suppose that the language objected to as misleading is thought to be so because not applicable to the case as made by the testimony. But as none of the testimony is incorporated in the “Case,” and the record does not furnish us with even a general outline of the circumstances attending this deplorable tragedy, it is impossible for us to say that these remarks were either inapplicable to the case made, or calculated to mislead the jury. On the contrary, we are bound to assume that they were applicable, as we cannot suppose that the Circuit Judge, in instructing the jury as to their duties in so grave a case, would allow himself to indulge in general observations that had no application to the cáse, and might therefore tend to distract the minds of the jury from the real issues they were to pass upon.
4 Turning, then, to the first inquiry, it will be observed that the judge, after explaining to the jury the difference between murder and manslaughter, used the language objected to, probably for the purpose of disabusing their minds of what seems to be a popular impression, that where the killing is done in sudden heat and passion, the crime will be manslaughter and not murder, without reference to the provocation received. It was, then, very natural for him to go on and explain the nature [129]*129of such provocation as would or would not be sufficient to reduce the killing from murder to manslaughter. It was in this connection that the jury were instructed, correctly as we think, that provocation by words only, no matter how opprobrious, would not be sufficient. That this has been the law of this State from time immemorial cannot be questioned, and we are not aware that any such modern doctrine as that contended for has ever been recognize!^ in this State. On the contrary, one of the recent decisions of this court (State v. Jacobs, 28 S. C., 29) expressly holds the contrary. This broad statement of the doctrine must be understood as applying to a case where the death was caused by the use of a deadly weapon, as it may be different where the death results from the use of some agency not likely to produce death, as, for example, from a blow with the fist. But although, as we have said, there is nothing in the record furnished us to show the circumstances attending the homicide, yet the fact that the death in this instance was caused by the use of a deadly weapon sufficiently appears, as well from the judge’s charge as from the agreement to amend the ‘-Brief,” made at the hearing, by stating that the prisoner fired two shots. We do not think, therefore, that the second ground of appeal can be sustained.
5 The third ground of appeal rests upon a misconception of the judge’s charge. Indeed, it seems to be conceded in the argument of appellant’s counsel, that the judge did not state, in terms, to the jury the proposition there excepted to, but that such is the inference to be drawn from the language used by him. We do not think that any such inference could properly be drawn from the language used. On the contrary, as it seems to us, the plain meaning of the proposition stated to the jury was that the law will imply that a person who does an unlawful act intended the natural and probable consequences of his unlawful act, and is therefore responsible therefor; and when read in connection with the illustration given of A intending to shoot B, fires upon him, intending to murder him, but misses B and kills 0, then A would be guilty of murder, although he may not have had the slightest intention of killing C, or even injuring him in any way, the jury could not possibly have had a doubt as to the [130]*130meaning of the proposition, which was clearly correct, as was held in State v. Smith, 2 Strob., 77.
6 The other illustration given by the judge of one killing another in an attempt to commit suicide, and commented on by counsel for appellant in his argument here, as presenting an incorrect view of the law, will be considered, though the “Case,” as prepared for argument here, contains nothing from which it can be inferred that there was any evidence out of which such a question could be raised. It is true that counsel, in his argument, does say that, according to the evidence, the defendant attempted to kill himself, and in doing so unfortunately killed his wife, who was attempting to prevent the suicidal act. But as we have often held that we cannot decide a case upon any testimony stated only in argument, and not appearing in the “Case” prepared for a hearing in this court, this matter is not properly before us. Inasmuch, how’evor, as this is a case involving such grave consequences, we are not unwilling to depart from the welLsettled rule, and consider the propriety of what was said to the jury upon the subject of suicide, although there is no exception to that part of the charge.
7 The judge used this language in his charge: “In the eye of the law, self destruction — suicide—-is an offence, it is an unlawful act, and if a man with a deadly weapon undertakes to take his own life, he is doing an unlawful act, and if in the commission or attempted commission of that act he takes the life of an innocent party standing by, then, in the eye of the law, that is murder.” To this instruction there is no well founded exception. In 1 Russell on Crimes, 4*24 (3rd Am. edit.), it is said: “Whenever an unlawful act, an act malum in se, is Idone in prosecution of a felonious intention, and death ensues, it iwill be murder.” Now, as suicide is an unlawful act, malum in se, and is a felony (1 Bish. Cr. Law, §§ 511-615), there can be no doubt that the proposition laid down by the judge is correct. We have carefully examined the case of Commonwealth v. Mink (123 Mass., 422, reported also in 25 Am. Rep., 109), cited by counsel for appellant on this point, and we do not think it is applicable, for the reason that in the State of Massachusetts they have a statute providing that “any crime punishable by death or [131]*131imprisonment in the State prison, is a felony, and no other crime shall be so considered.” Suicide therefore is not a felony in that State, as from the very nature of the case it cannot be punishable “by death or imprisonment in the State prison;” and yet in that very case Gray, C. J., in delivering the opinion of the court, intimates pretty plainly that one who, in an unsuccessful attempt to commit suicide, unintentionally kills another who is endeavoring to prevent it, is guilty of murder. But in this State we have no such statute, and, on the contrary, sec. 2678 of the General Statutes, prescribing the form of the verdict of a coroner’s inquest in a case of suicide, by the use of the term “feloniously,” expressly recognizes it as retaining its common law character as a felony.
6 8 The fourth ground of appeal is too general to require attention. Nevertheless, in favorem vitae, we will not decline to consider such questions as we can gather from the argument were intended to be raised by that ground. The first is as to the doctrine of moral insanity, as it is sometimes called, or uncontrollable impulse. While it is not to be denied that there are cases in some of the States which recognize this doctrine as a defence against a charge of crime, yet
it never has, and we trust never will, obtain a foothold in this State; for we agree with Judge Sherwood when he said in the recent case of State v. Pagels, 92 Mo., 300: “It will be a sad day for this State when uncontrollable impulse shall dictate a rule of action to our courts.” It is a matter that is not susceptible of proof, and to allow a person to escape the consequences of his criminal act by asserting that he acted under an impulse which he could not restrain, although he knew his act to be unlawful, would be dangerous if not destructive to the peace of society. See State v. Bundy, 24 S. C., at page 444-5; State v. Alexander, 30 Id., 74. See also Leache v. State (22 Texas Ct. App., 279, reported also in 58 Am. Rep., 638), where the question is ably and elaborately discussed, and the ruling was in conformity to the view we have adopted. In Parsons v. State (81 Ala., 577, to be found also in 60 Am. Rep., 193), the whole subject of insanity as a defence is most ably and elaborately discussed, and both sides of the question more immediately present[132]*132ed here, will be found fully presented in the opinion of the court delivered by Somerville, J., and the dissenting opinion by Stone, C. J.
9 Under this ground the appellant’s counsel further objects to the definition of malice as given by the Circuit Judge, because it omits the word intentionally, and claims that a correct definition should read : “Malice means the doing of an unlawful act intentionally, without justification or excuse.” Perhaps this criticism might be well founded if we confined our attention solely to the particular sentence upon which it is based ; but when the whole charge is considered together, as the rule requires it to be, there is plainly no foundation for the exception. From what we can discover as to the nature of the case in which this charge was made, as well from the record as the argument here, it does not seem to us that the omission of this qualifying word in defining the word “malice” could possibly have prejudiced the prisoner. As we have seen, the law ipresumes that a person intends the natural and probable consequences of his own act, and it is for the party charged to show the absence of intention. Hence when it is shown that one has taken the life of another, without justification or excuse, the law will imply malice without reference to what was actually passing in the prisoner’s mind at the time he committed the homicide.
The judgment of this court is, that the judgment of the Circuit Court be affirmed, and that the case be remanded to that court for the purpose of having a new day assigned for the execution of the sentence heretofore imposed.