The opinion of the court was delivered by
Mr. Justice McIver.
The defendants in this case having been convicted of murder, gave notice of appeal upon the several grounds set out in the record, but having escaped from jail pending the appeal, and only one of them, to wit, the defendant, Murrell, having been recaptured, his appeal alone will be considered; as this court declines to hear the appeal of a party who evades the process of the court, and refuses to submit himself to its jurisdiction. Ex parte Pereira, 6 Rich., 149; Smith v. United States, 94 U. S., 97 ; Bonahan v. Nebraska, 125 Id., 692; People v. Redinger, 55 Cal., 290, s. c. 36 Am. Rep., 32; State v. Wright, 32 La. Ann., 1017, s. c. 36 Am. Rep., 274. Inasmuch as there was no motion to dismiss the appeal of the defendant who has escaped from custody, and has not yet been recaptured, we decide nothing now as to that, but will simply confine our attention to the appeal of the defendant, Murrell.
[97]*97All of the exceptions impute error to the Circuit Judge in his charge to the jury, except the last one, which will be hereinafter specifically stated. The charge is set out in full in the “Case,”' and, in justice to the Circuit Judge, should be incorporated in the report of the case, because most of the exceptions impute error in refusing certain requests to charge, which were, in fact, really embraced in the general charge, and, therefore, even if the requests specifically submitted presented correct propositions of law, there would be no error in refusing to charge them specifically in the language of the requests as framed by counsel, where the same principles of law had already been presented to the jury in the general charge.
We will, however, proceed to consider the exceptions seriatim. The first is as follows: “Because his honor erred in charging the jury, that ‘implied malice is any unlawful act intentionally done— that is, a killing intentionally done, without just excuse, would constitute evidence to your minds of malice.’ ” It will be observed, that this exception is based upon an isolated extract from the charge, which, to be properly understood, should be read in the connection in which it was used, for that is the way in which it was presented to the minds of the jury. So read, we do not see how it can be properly said there was any error. It seems to be argued, that it was possible for one to kill another intentionally, without just excuse, and yet the killing would amount to nothing more than manslaughter. Now, even granting this to be so, yet it is quite clear that when this abstract remark is read in connection with what followed in reference to the ingredients of the offence of manslaughter, it is impossible to suppose that the jury could have be^n misled.
The second exception having been abandoned at the hearing, need not be considered or stated.
The third exception is: “Because his honor erred in charging that he (Murrell) does not set up that he was ever assaulted by the deceased, and no other witness testified that Murrell was assaulted by the deceased.” This statement made by the Circuit Judge is expressly admitted in the “Case” to be strictly correct, and in addition to this, it appears from the charge, as there set out, that when the Circuit Judge, in the progress of his charge, [98]*98said, “The defendant, Murrell, I do not understand to have set up in his plea self-defence,” one of the counsel for the prisoners, addressing the court, remarked, “He sets up non est factum ; that he did not do anything at all,’? and the judge resuming his charge, used the language complained of in this exception. How this can be characterized as error of law, or even as an impropriety, we are at a loss to conceive. It is very manifest that the judge was simply calling the attention of the jury to the nature of the defence set up by Murrell, as stated by his own counsel. The statement contained no proposition of law, either correct or otherwise, and at most was a mere repetition of an undisputed fact, preparatory to a consideration of the defence actually set up by the defendant, Murrell.
The fourth exception is in these words : “Because his honor erred in refusing to charge, as requested, that ‘one attacked with a deadly weapon may repel force by force, and if there is a manifest intent and endeavor to commit a felon}7 upon him, he is, under such circumstances, not obliged to retreat, but may pursue his adversary until he finds himself out of danger; and if, in such a conflict, he happen to kill his adversary, such killing is justifiable, and ift self defence’ — T so charge you, gentlemen j but the elements of self-defence must concur to entitle him to the benefits of that law’ — but modified the same by the above modification.” It is quite clear that the modification was proper, for the request, until so modified, ignored the important element, that the party setting up such defence must not have been in fault in bringing on the difficulty.
The fifth exception is as follows: “Because his honor erred in refusing to charge the third request — ‘That if the jury find from the evidence that defendants were assaulted by the deceased with a pistol, and reasonably believed at the time that they were in danger of loss of life or limb, or serious bodily harm, they were not obliged, under the law, to flee, if, by so doing, the danger was increased, or would encourage the assailant to repeat the assault, if, by so doing, they would be less prepared to resist or repel the assault’ — and in charging as modified, ‘I refuse to charge you that, gentlemen. Counsel desire to have the law charged in a particular phase; they must conform it to the testis[99]*99mony. There is no testimony here showing that the defendant, Murrell, was ever assaulted, or anything of that kind. I have charged you, anyhow, the law which covers that request, I think, very fully.’ ” The request, as framed, undoubtedly covered the case of-both of the prisoners, and as their defences were distinct and different, it certainly had no application whatever to the only defence expressly admitted to have been set up by the appellant, Murrell; it could, upon that ground alone, have been very properly refused. But where, in addition to this, it appears that the' legal proposition contained in the request had already been presented to the jury,jn proper form in the general charge, there can be no doubt that the request was properly refused, especially when presented in an objectionable form. These remarks apply wdth equal force to the sixth and seventh exceptions, which need not, therefore, be further considered.
The eighth exception is in the following language: “Because his honor erred in bringing into court the jury and making the following statement: ‘By the Court: Have you agreed on your verdict? The Foreman : No, sir. The Court: Is it a question of law ? The Foreman : We think so. We wish to know if we can supplement our verdict with a recommendation to mercy ? The Court: Yes, sir. The law provides that in certain cases the jury are allowed to supplement the verdict with a recommendation to mercy, and that of itself changes the verdict. In cases like this, a recommendation to mercy would have its influence with the court; it would not be binding upon the court, but it would have its influence upon the court.
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The opinion of the court was delivered by
Mr. Justice McIver.
The defendants in this case having been convicted of murder, gave notice of appeal upon the several grounds set out in the record, but having escaped from jail pending the appeal, and only one of them, to wit, the defendant, Murrell, having been recaptured, his appeal alone will be considered; as this court declines to hear the appeal of a party who evades the process of the court, and refuses to submit himself to its jurisdiction. Ex parte Pereira, 6 Rich., 149; Smith v. United States, 94 U. S., 97 ; Bonahan v. Nebraska, 125 Id., 692; People v. Redinger, 55 Cal., 290, s. c. 36 Am. Rep., 32; State v. Wright, 32 La. Ann., 1017, s. c. 36 Am. Rep., 274. Inasmuch as there was no motion to dismiss the appeal of the defendant who has escaped from custody, and has not yet been recaptured, we decide nothing now as to that, but will simply confine our attention to the appeal of the defendant, Murrell.
[97]*97All of the exceptions impute error to the Circuit Judge in his charge to the jury, except the last one, which will be hereinafter specifically stated. The charge is set out in full in the “Case,”' and, in justice to the Circuit Judge, should be incorporated in the report of the case, because most of the exceptions impute error in refusing certain requests to charge, which were, in fact, really embraced in the general charge, and, therefore, even if the requests specifically submitted presented correct propositions of law, there would be no error in refusing to charge them specifically in the language of the requests as framed by counsel, where the same principles of law had already been presented to the jury in the general charge.
We will, however, proceed to consider the exceptions seriatim. The first is as follows: “Because his honor erred in charging the jury, that ‘implied malice is any unlawful act intentionally done— that is, a killing intentionally done, without just excuse, would constitute evidence to your minds of malice.’ ” It will be observed, that this exception is based upon an isolated extract from the charge, which, to be properly understood, should be read in the connection in which it was used, for that is the way in which it was presented to the minds of the jury. So read, we do not see how it can be properly said there was any error. It seems to be argued, that it was possible for one to kill another intentionally, without just excuse, and yet the killing would amount to nothing more than manslaughter. Now, even granting this to be so, yet it is quite clear that when this abstract remark is read in connection with what followed in reference to the ingredients of the offence of manslaughter, it is impossible to suppose that the jury could have be^n misled.
The second exception having been abandoned at the hearing, need not be considered or stated.
The third exception is: “Because his honor erred in charging that he (Murrell) does not set up that he was ever assaulted by the deceased, and no other witness testified that Murrell was assaulted by the deceased.” This statement made by the Circuit Judge is expressly admitted in the “Case” to be strictly correct, and in addition to this, it appears from the charge, as there set out, that when the Circuit Judge, in the progress of his charge, [98]*98said, “The defendant, Murrell, I do not understand to have set up in his plea self-defence,” one of the counsel for the prisoners, addressing the court, remarked, “He sets up non est factum ; that he did not do anything at all,’? and the judge resuming his charge, used the language complained of in this exception. How this can be characterized as error of law, or even as an impropriety, we are at a loss to conceive. It is very manifest that the judge was simply calling the attention of the jury to the nature of the defence set up by Murrell, as stated by his own counsel. The statement contained no proposition of law, either correct or otherwise, and at most was a mere repetition of an undisputed fact, preparatory to a consideration of the defence actually set up by the defendant, Murrell.
The fourth exception is in these words : “Because his honor erred in refusing to charge, as requested, that ‘one attacked with a deadly weapon may repel force by force, and if there is a manifest intent and endeavor to commit a felon}7 upon him, he is, under such circumstances, not obliged to retreat, but may pursue his adversary until he finds himself out of danger; and if, in such a conflict, he happen to kill his adversary, such killing is justifiable, and ift self defence’ — T so charge you, gentlemen j but the elements of self-defence must concur to entitle him to the benefits of that law’ — but modified the same by the above modification.” It is quite clear that the modification was proper, for the request, until so modified, ignored the important element, that the party setting up such defence must not have been in fault in bringing on the difficulty.
The fifth exception is as follows: “Because his honor erred in refusing to charge the third request — ‘That if the jury find from the evidence that defendants were assaulted by the deceased with a pistol, and reasonably believed at the time that they were in danger of loss of life or limb, or serious bodily harm, they were not obliged, under the law, to flee, if, by so doing, the danger was increased, or would encourage the assailant to repeat the assault, if, by so doing, they would be less prepared to resist or repel the assault’ — and in charging as modified, ‘I refuse to charge you that, gentlemen. Counsel desire to have the law charged in a particular phase; they must conform it to the testis[99]*99mony. There is no testimony here showing that the defendant, Murrell, was ever assaulted, or anything of that kind. I have charged you, anyhow, the law which covers that request, I think, very fully.’ ” The request, as framed, undoubtedly covered the case of-both of the prisoners, and as their defences were distinct and different, it certainly had no application whatever to the only defence expressly admitted to have been set up by the appellant, Murrell; it could, upon that ground alone, have been very properly refused. But where, in addition to this, it appears that the' legal proposition contained in the request had already been presented to the jury,jn proper form in the general charge, there can be no doubt that the request was properly refused, especially when presented in an objectionable form. These remarks apply wdth equal force to the sixth and seventh exceptions, which need not, therefore, be further considered.
The eighth exception is in the following language: “Because his honor erred in bringing into court the jury and making the following statement: ‘By the Court: Have you agreed on your verdict? The Foreman : No, sir. The Court: Is it a question of law ? The Foreman : We think so. We wish to know if we can supplement our verdict with a recommendation to mercy ? The Court: Yes, sir. The law provides that in certain cases the jury are allowed to supplement the verdict with a recommendation to mercy, and that of itself changes the verdict. In cases like this, a recommendation to mercy would have its influence with the court; it would not be binding upon the court, but it would have its influence upon the court. There is no provision that the court shall be governed by the recommendation, but, of course, the court is always, more or less, owing to the circumstances, governed — influenced, I should have said — by the recommendation of the jury.’ ”
We cannot say that there was any error of laiv in the response made by the Circuit Judge to the inquiry from the jury. It is true, as matter of law, that there are cases in which, by virtue of special statutory enactment, a recommendation to mercy accompanying a verdict of guilty, does have the legal effect of changing the sentence which would otherwise follow, as, for example, arson, rape, and burglary at common law; and it is equally true that in [100]*100cases like the one now under consideration, such a recommendation is not binding on the court, as in the cases of arson, &c., but may, and probably would, have its influence with the court, either in modifying the sentence, if the conviction had been of manslaughter, or in some other way, if the conviction was of the higher grade of offence. This is illustrated not only by common experience, but also by at least one decided case (State v. Frink, 1 Bay, 165), where, upon a conviction .of manslaughter, at a time when athat offence was punished by branding in the hand, which had been usually inflicted instanter in open court, a recommendation to mercy was allowed to operate a postponement of the execution of the sentence until the prisoner could have an opportunity to apply for executive clemency. While, therefore, it may be, as was suggested in State v. Gill (14 S. C., 415), that it would have been better, in order to avoid even the appearance of any attempt to influence the jury (which, however, it is due to the Circuit Judge to say, is not even intimated), in a case like this, to have confined the response to the inquiry from the jury to a simple answer to their question, without adding anything as to the effect of a recommendation to mercy; yet when there is no error of law in stating the probable consequences of such a recommendation, we do not feel warranted in making it a ground for reversing the judgment.
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 upon the defendant, Whitfield Murrell. The appeal as-to the other defendant, Willie Carpenter, is suspended until the further order of this court.