The opipion of the Court was delivered by
Mr. Justice Gary.
Upon the trial of the defendant for murder, the jury rendered a verdict of guilty, and he appealed upon exceptions which will be set out in the report of the case. His Honor, the presiding Judge, charged the jury as follows:
“The State charges the killing was murder; that is to
say, that it was done with malice aforethought, either expressed or implied. Now, what does that mean? (A great deal has been said and written as explanatory of malice and to illustrate malice, and men may have different conceptions of what that legal term means. After all, what is malice? It is the intentional taking of human life.) And in the investigation of this question, therefore, you can see you must perform the somewhat delicate and difficult task of trying to interpret the intention which actuated the act. (Now, Mr. Foreman and gentlemen of the jury, if you believe beyond a reasonable doubt that th°e defendant intentionally killed Walter Mills, that the purpose which actuated the act — that the purpose which actuated the pulling of the trigger — was, I mean to kill him because I want to kill him —if that be the purpose, and that be the motive, it makes no difference what may have been the surrounding circumstances, that is murder.”)
That portion of the charge embraced within the first parenthesis is made the basis of the first exception; and that part in the second parenthesis, of the second exception.
1
In the case of
State
v.
Coleman,
6 S. C., 185, the Circuit Judge charged that “all homicide is presumed to be malicious, and amounting to murder until the contrary appears from circumstances of alleviation, excuse or justifi cation; and that it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the Court and jury, unless they arise out of the evidence produced' against him.” In disposing of the exception assigning error in this charge, this Court said: “The authorities undoubtedly support the proposition that the law presumes malice from the mere fact of homicide. 4 Black. Com., 201;
State
v.
Toohey,
Mss. But this presumption is not applicable where the facts and circumstances attending the homicide are disclosed in evidence so as to draw a conclusion of malice or want of malice as one of fact from the evidence. Presumptions of this class are intended as substitutes in the absence of direct proofs, and are, in
their nature, indirect and constructive. The best evidence of the state of mind attending any act is what was said and done by the person whose motive is sought for. * * * If the evidence did not warrant the conclusion of malice, the jury should have so found, uninfluenced by any presumptions from the naked facts of the homicide. * * * Where the circumstances preceding and attending an act of this character are full, as in the present case, the prisoner is entitled to the benefit of any doubt that may arise, and cannot be deprived of such benefit by any presumption of guilt arising by operation of law from the naked fact of the homicide. A charge may be erroneous, although the propositions of which it is composed may severally be conformable to recognized authority, if in its scope and bearing in the case it was likely to lead to a misconception of the law.”
The rule is thus stated in
State
v.
Hopkins,
15 S. C., 153, 156: “There is no doubt whatever of the isolated proposition that the law presumes malice from the mere fact of homicide, but there are cases as made by the proof to which the rule is inapplicable. When all of the circumstances of the case are fully proved there is no room for presumption. The question becomes one of fact for the jury, under the general principle that he who affirms must prove, and that every man is presumed innocent until the contrary appears. We cannot distinguish this case from that of
State
v.
Coleman,
6 S. C., 185.”
These cases are cited with approval in
State
v.
Ariel,
38 S. C., 221,16 S. E., TT9. It will thus be seen that the charge was inapplicable to the facts of the case under consideration —-the witnesses having testified as to the facts and circumstances surrounding the homicide.
2
It might be that the Court would regard the charge as merely illustrative of malice, and that the error was corrected in the subsequent charge as to the different degrees of homicide (under the cases of
State
v.
Murrell,
33
S. C., 83, 11 S. E., 682, and
State
v.
McDaniel,
68 S. C., 304, 47 S. E., 384), but for the fact that the principle was emphasized and made applicable to the facts in this case in the other portion of said charge. The first exception is sustained.
3
The principle announced in that part of the charge set out in the second exception was intended to have direct application to the facts of the case under consideration. The defendant may have intended to kill the deceased “because he wanted to kill him,” and yet it would not be murder if he took his life under sudden heat and passion and upon a sufficient legal provocation. The only manner in which the jury could determine the intention of the defendant in committing the homicide was by taking into consideration the facts attending the killing. When, therefore, the presiding Judge said to the jury that “it makes no difference what may have been the surrounding circumstances, that is murder,” they were bound to find the defendant guilty of that crime if they were satisfied that the defendant “meant to kill the deceased because he wanted to kill him.” It is true the presiding Judge afterwards charged the law applicable to manslaughter, but 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. This exception is sustained.
4
Third exception: Immediately after the language in the exception modifying the request, the presiding Judge also charged as follows: “And I charge you, where the public has used a road twenty years or more, adversely through the premises of another person, that the public would acquire a right of way along that road, and one traveling along that road could not be considered a trespasser to adjoining property-owners; or if a man traveling through your premises in a path has the rights of a licensee, you would not have the right to treat him as
a trespasser. I charge you that subject to that explanation I have given you and what I have said in my general charge.” There was testimony tending to show that at the time of the difficulty the defendant was on his own premises, and the deceased on a road used by the public, where he was killed.
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The opipion of the Court was delivered by
Mr. Justice Gary.
Upon the trial of the defendant for murder, the jury rendered a verdict of guilty, and he appealed upon exceptions which will be set out in the report of the case. His Honor, the presiding Judge, charged the jury as follows:
“The State charges the killing was murder; that is to
say, that it was done with malice aforethought, either expressed or implied. Now, what does that mean? (A great deal has been said and written as explanatory of malice and to illustrate malice, and men may have different conceptions of what that legal term means. After all, what is malice? It is the intentional taking of human life.) And in the investigation of this question, therefore, you can see you must perform the somewhat delicate and difficult task of trying to interpret the intention which actuated the act. (Now, Mr. Foreman and gentlemen of the jury, if you believe beyond a reasonable doubt that th°e defendant intentionally killed Walter Mills, that the purpose which actuated the act — that the purpose which actuated the pulling of the trigger — was, I mean to kill him because I want to kill him —if that be the purpose, and that be the motive, it makes no difference what may have been the surrounding circumstances, that is murder.”)
That portion of the charge embraced within the first parenthesis is made the basis of the first exception; and that part in the second parenthesis, of the second exception.
1
In the case of
State
v.
Coleman,
6 S. C., 185, the Circuit Judge charged that “all homicide is presumed to be malicious, and amounting to murder until the contrary appears from circumstances of alleviation, excuse or justifi cation; and that it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the Court and jury, unless they arise out of the evidence produced' against him.” In disposing of the exception assigning error in this charge, this Court said: “The authorities undoubtedly support the proposition that the law presumes malice from the mere fact of homicide. 4 Black. Com., 201;
State
v.
Toohey,
Mss. But this presumption is not applicable where the facts and circumstances attending the homicide are disclosed in evidence so as to draw a conclusion of malice or want of malice as one of fact from the evidence. Presumptions of this class are intended as substitutes in the absence of direct proofs, and are, in
their nature, indirect and constructive. The best evidence of the state of mind attending any act is what was said and done by the person whose motive is sought for. * * * If the evidence did not warrant the conclusion of malice, the jury should have so found, uninfluenced by any presumptions from the naked facts of the homicide. * * * Where the circumstances preceding and attending an act of this character are full, as in the present case, the prisoner is entitled to the benefit of any doubt that may arise, and cannot be deprived of such benefit by any presumption of guilt arising by operation of law from the naked fact of the homicide. A charge may be erroneous, although the propositions of which it is composed may severally be conformable to recognized authority, if in its scope and bearing in the case it was likely to lead to a misconception of the law.”
The rule is thus stated in
State
v.
Hopkins,
15 S. C., 153, 156: “There is no doubt whatever of the isolated proposition that the law presumes malice from the mere fact of homicide, but there are cases as made by the proof to which the rule is inapplicable. When all of the circumstances of the case are fully proved there is no room for presumption. The question becomes one of fact for the jury, under the general principle that he who affirms must prove, and that every man is presumed innocent until the contrary appears. We cannot distinguish this case from that of
State
v.
Coleman,
6 S. C., 185.”
These cases are cited with approval in
State
v.
Ariel,
38 S. C., 221,16 S. E., TT9. It will thus be seen that the charge was inapplicable to the facts of the case under consideration —-the witnesses having testified as to the facts and circumstances surrounding the homicide.
2
It might be that the Court would regard the charge as merely illustrative of malice, and that the error was corrected in the subsequent charge as to the different degrees of homicide (under the cases of
State
v.
Murrell,
33
S. C., 83, 11 S. E., 682, and
State
v.
McDaniel,
68 S. C., 304, 47 S. E., 384), but for the fact that the principle was emphasized and made applicable to the facts in this case in the other portion of said charge. The first exception is sustained.
3
The principle announced in that part of the charge set out in the second exception was intended to have direct application to the facts of the case under consideration. The defendant may have intended to kill the deceased “because he wanted to kill him,” and yet it would not be murder if he took his life under sudden heat and passion and upon a sufficient legal provocation. The only manner in which the jury could determine the intention of the defendant in committing the homicide was by taking into consideration the facts attending the killing. When, therefore, the presiding Judge said to the jury that “it makes no difference what may have been the surrounding circumstances, that is murder,” they were bound to find the defendant guilty of that crime if they were satisfied that the defendant “meant to kill the deceased because he wanted to kill him.” It is true the presiding Judge afterwards charged the law applicable to manslaughter, but 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. This exception is sustained.
4
Third exception: Immediately after the language in the exception modifying the request, the presiding Judge also charged as follows: “And I charge you, where the public has used a road twenty years or more, adversely through the premises of another person, that the public would acquire a right of way along that road, and one traveling along that road could not be considered a trespasser to adjoining property-owners; or if a man traveling through your premises in a path has the rights of a licensee, you would not have the right to treat him as
a trespasser. I charge you that subject to that explanation I have given you and what I have said in my general charge.” There was testimony tending to show that at the time of the difficulty the defendant was on his own premises, and the deceased on a road used by the public, where he was killed.
The question is, whether there was error in the charge that there might be circumstances which would require a defendant to avail himself of every means of escape, to avoid taking human life on his own premises. As applied to the facts of this case, the question is, whether the defendant may not have been bound to retreat before killing the deceased, if the defendant was on his own premises and the deceased on the public road at the time of the fatal difficulty. Some Courts have held that one assaulted in a public street % is not bound to retreat before taking measures to defend himself, because he is where he has a lawful right to j be.
State
v.
Bartlett,
59 L. R. A. (Mo.), 756. But this j doctrine is not based upon sound principles, and it never has been recognized in this State. If the defendant was ! attacked while on his own premises by the deceased, who was at that time on the public highway, or where he had a right to be, then the defendant was bound to retreat before j taking the life of his adversary, if there was a probability of his being able to escape, without losing his life or suffer- ; ing grievous bodily harm. The reason is, that under such .' circumstances he would not have had the right to eject his adversary from the place where he had a right to be. The presiding Judge recognized this distinction, and his modification of the request was free from error.
5
The fourth exception arose during the examination of John Hoops, a witness for the defendant, as follows: “Q. What did you tell him about going over there ? A. I didn’t say anything then. I told him to let’s go by Joe Seaborn’s wheat, that it was looking mighty fine. And we walked around down there and back to the bridge, and when we got to the bridge I said, ‘Go home with
me/ and he said, ‘No, I am going home. I told Walter I would go and look at his cow,’ and I turned to him and said, ‘Earle — ’ Objected to by Mr. Boggs. I don’t think that has anything to do with the case. It is a conversation he had there, and it is not a part of the
res gestae.
By the Court: I don’t think it is competent, Mr. Jaynes, for the witness to detail any conversation. By Mr. Jaynes: I think it is competent for him to prove substantive facts, what he did, and what occurred after seeing Walter Mills, and his manner. I think it would be competent for him to say he warned Mr. Rochester not to go over there. By Mr. Boggs: I don’t think it is competent. It is hearsay. By the Court: I don’t think it is competent. Mr. Jaynes excepts.”
It thus appears that the witness was not allowed to testify, and the Court does not know what would have been his testimony. When objection cannot be urged against a question intended to elicit incompetent testimony, the Court cannot know whether it is admissible until it hears the testimony. If it is incompetent it can then be ruled out. It seems, from the argument of counsel, when objection was made, that the object of the testimony was to warn the defendant that it would be dangerous for him to go to the home of the deceased. Such testimony was calculated to influence the conduct of the defendant, and make him more apprehensive, and would be competent.
State
v.
Smith,
12 Rich., 430;
State
v.
Thrailkill,
71 S. C., 136;
State
v.
Dean,
72 S. C., 74.
6
Fifth exception: It does not appear from the testimony that the witness told the defendant why she wanted him to work on the upper side of the place. The testimony was, therefore, immaterial; and the refusal to allow the witness to aswer the question propounded was not reversible error.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial.