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The opinion of the court was delivered by

Mr. Chief Justice McIver.

3 While I concur in the conclusions reached by Mr. Justice Pope upon all of the other grounds of appeal, I cannot agree with him in the view which he takes of the third and fourth grounds. The point there made, as I understand it, is that the Circuit Judge erred in declining to charge, without qualification, that it was incumbent upon the State to prove, beyond a reasonable doubt, that the defendant made the first assault or commenced the difficulty'; and the particular complaint made is that the Circuit Judge, in giving that instruction, interposed the words: “If that is a question of fact which it is essential that you pass upon,” the appellant contending that those words should not *157have been interposed, but that the jury should have been told, without qualification, that it was incumbent upon the State to prove, beyond a reasonable doubt, that the defendant made the first assault or commenced the difficulty.

To sustain this position, it would be necessary to assume that in no case could a defendant be convicted of murder, or even of manslaughter, unless the jury were satisfied beyond a reasonable doubt that the accused made the first assault or commenced the difficulty. Such an assumption is not, in my opinion, well founded. While it is quite true that in many cases the question as to who made the first assault or commenced the difficulty is a material inquiry, yet it is not so in all cases. For example, besides other illustrations which might be used, if a trivial assault is made upon one person by another, and the person so assailed draws a deadly weapon and uses it with fatal effect, there can be no doubt that he would be guilty of manslaughter, at least; and the fact that the deceased committed the first assault would be wholly insufficient to reduce the case to one of self-defence. In such a case, therefore, the question as to who committed the first assault would not be material. Hence I do not think it would be correct to say that in every case the jury must be satisfied beyond a reasonable doubt that the accused committed the first assault or commenced the difficulty, before he can be convicted of any offence; but that the true rule is that, where the question as to who commenced the difficulty is a material inquiry, it is necessary that the jury should be satisfied beyond a reasonable doubt that the accused was the aggressor before he can be convicted, just as they must be satisfied of every other material fact in the case. It seems to me that the charge of the Circuit Judge was precisely in accordance with this rule, and, therefore, not erroneous. Whether the facts of this particular case were such as to make the inquiry whether the accused was the aggressor material, was a question for the jury, which the Circuit Judge had no right to consider, and hence they were correctly instructed, that if they believed that such facts rendered it necessary to inquire who was the aggressor, then the State was bound to prove beyond a reasonable doubt that the defendant was the aggressor. I think, therefore, *158that the judgment of the Circuit Court should be affirmed, and this being the opinion of the majority,

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.

Mr. Justice McGowan concurred.Mr. Justice Pope

dissenting. The appellant having been convicted of murder, now questions such conviction in the following particulars, as embodied in her grounds of appeal:

1. Because the presiding judge refused to charge, as requested, “That there must be a motive for the commission of the crime and there must be a criminal intent; it is incumbent upon the State to establish both the motive and the intent, in order to obtain a verdict.”

2. Because the presiding judge erred in charging the jury as follows: “Manslaughter is the killing of a person in sudden heat and passion upon sufficient legal provocation.”

3. Because the presiding judge erred iu charging the jury as follows: “That it is incumbent upon the State to prove beyond a reasonable doubt that it was the defendant here, the party on trial, who first began the assault, first started the fuss; if that is a question of fact, which it is essential that you will pass upon, certainly the State must prove that fact, as it proves all other facte, beyond a reasonable doubt.”

4. Because the presiding judge refused to charge as requested: “That when who first assailed is uncertain, the State must prove, to the exclusion of a reasonable doubt, that it was the defendant.”

5. Because the presiding judge erred in charging: “I have discovered that my friend, if he had turned back to the 21st chapter of Exodus and read a little passage there, would have found that the law of God and the law of South Carolina are exactly the same. You remember, gentlemen, that it is told in the Bible that in olden times there were cities of refuge, where a man, if he slew his fellow-man, might flee, and the avenger of human blood could not take him. These *159places of refuge were the sanctuary, the temples of those days, and the man who had slain his fellow-man might shield himself under the shadow of the altar, but my friend forgets one distinction, that the Author and Maker of this law described what class of men, who had taken the lives of their fellow-men, should find protection under the wings of the altar, and here it is: ‘He that smiteth a man so that he die, shall be surely put to death. And if a man lie not in wait’ (that is, if the man does not prepare to kill his man), ‘but God deliver him into his hands, then I will appoint thee a place whither he shall flee.’ That means, if a man commits the offence of manslaughter, kills a fellow-man without malice, he is entitled to the protection of the sanctuary, and the laws of South Carolina afford him the same protection. But in the next place it is, ‘But if a man comes presumptuously upon his neighbor to slay him with guile, thou shall take him from my altar, that he may die.’ ”

6. Because the presiding judge erred in charging: “You write your verdict, and let the consequences be where they belong.”

7. Because the presiding judge erred in intimating to the jury his opinion on the question of fact as to the guilt of the defendant.

8. Because the presiding judge erred in charging as follows: “I can tell you, though, that words are never a legal provocation.”

9. Because the presiding judge erred in charging in effect that words could not cause sudden heat and passion.

2 The ninth ground of appeal is too general, and under strict practice is not entitled to .be considered, but in view of the gravity of the case we have searched the entire charge of the presiding judge to discover if it was subject to this objection, and we fail to find that the judge even in effect charged as here complained.

3 The eighth ground of appeal, which has been presented both earnestly and ably by appellant’s counsel, cannot be sustained. It is at variance with the law to hold that mere words constitute legal provocation. Two recent cases of our *160own court have so decided. State v. Jacobs, 28 S. C., 34; State v. Jackson, 32 Id., 43.

4 As to the fifth ground of appeal, which complains that the Circuit Judge referred to the Bible to justify the law of this commonwealth on the subject of the punishment accorded to the offences of murder and manslaughter, we are not able to agree with the appellant. By reference to the charge of the judge, it seems that the quotations from the Bible made by him were in answer to an appeal in the argument of defendant’s counsel to a “higher law” which he claimed the Bible sustained. Certainly no harm was intended or accrued to the prisoner on that account.

5 The sixth ground of appeal refers to the closing words of the judge’s charge to the jury, and by reference to the “Case,” the alleged objectionable words are only a part of a sentence which, when examined as a whole, is entirely free from exception.

6 The seventh ground of appeal is not sustained by the “Case.” We fail to find that the judge in his charge allowed any expression to fall whereby he conveyed to the jury his impression as to the facts of the case.

7 The first ground of appeal is not sound in law; for while it is true that the intent is of the essence of the crimes of murder or manslaughter, and it is essential that the intent must be proved, it is not true that the motive of a defendant in crime should be proved. Frequently the motive of the criminal dies with him. It is the secret spring in the mind whose location is impossible in many cases. Of course, if known it may be proved, yet the failure to lay it bare in the trial of a criminal does not present any trouble in sustaining a conviction in absence of such proof.

8 The second ground of appeal assails the correctness of the definition by the Circuit Judge of the crime of manslaughter. He held as follows: “The next grade of homicide is manslaughter. That is the killing of a person without malice. Manslaughter is a crime. It does not turn the person loose and let him go at large, but the person who is guilty of manslaughter is guilty of a crime and is punished. *161The distinction between murder and manslaughter is, that in murder the killing is done with malice, and in manslaughter it is done without malice. That is what separates, differentiates. That definition would not help you very much, and I will charge you further: manslaughter is the killing of a person in sudden heat and passion, upon sufficient legal provocation.” Complaint is made of this definition by the judge, that it is not in the words of our statute referring to this offence. When we examine the charge of the presiding judge as found in the “Case,” it will be seen that at first he uses nearly the exact language of our statutory definition of the offence. But in order that the jury may be able to apprehend the language first used, the Circuit Judge afterwards shows how malice may be absent or, in other words, how the adjudicated cases on this subject allow the absence of malice to be established, viz: the absence of malice may be said to be established when the homicide is committed in sudden heat and passion, and upon a sufficient legal provocation. This upon an investigation will be found to be a correct presentation of the elements of manslaughter.

1 The third and fourth grounds of appeal will be considered together. They present the serious question in the case. The defendant requested the presiding judge to charge, that when it is uncertain who committed the first assault, then it is the duty of the State to prove beyond a reasonable doubt that it was the defendant. Unquestionably it is law, that when the facts of a difficulty which ended in the defendant taking the life of the deceased are brought out in testimony, and it there appears that both parties participated in the violence, the State should prove that the defendant was the assailant in the first instance, in order to warrant a conviction of murder. The defendant having made a request of the judge to charge this as a proposition, she was entitled to have this done. The “Case” does not show that the charge of the presiding judge was directly responsive to this request. And in this, we fear, there was error. The object of requests to charge is to obtain from the presiding judge a direct response to such request; not in the language of the request nor in the form *162presented, but still there must be a response of the judge to the point presented. This is his language: “I don’t exactly understand what is meant by that. If he means — and he will please see that I am correct — that it is incumbent upon the State to prove beyond a reasonable doubt that it was the defendant here, the party upon trial, who first began the assault, first started the fuss, very well; if that is a question of fact which it is essential for you to pass upon (italics ours), certainly the State must prove that fact, as it proves all other facts, beyond a reasonable doubt.” Thus it will be seen the Circuit Judge having begun his reference to this request by an expression of a doubt as to his apprehension of it, and afterwards using words showing a doubt whether the jury had to pass upon the facts underlying this request, we fear that he unwittingly prejudiced this most serious right of the woman who was on trial for her life; and because of this error there must be a new trial ordered.

Judgment affirmed.

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