¶1 After careful consideration of the within petition the Court is unable to discover that any material matter or question has been overlooked or disregarded. *51
¶2 It is, therefore, ordered that the petition be dismissed and that the order heretofore granted, staying remittitur, be revoked.
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Status
Disposition: Affirmed
Case posture Disposition Affirmed. Posture Before MEMMINGER, J., Union, Spring Term, 1909. Affirmed.Indictment against W.T. Jones for murder. The trial Judge instructed the jury as follows:
"In this case of the State v. W.T. Jones , who is under this indictment charged with murder you have heard all of the testimony which has been offered in evidence, you have had the benefit of argument of counsel, which is always helpful, and which in this case has been particularly able and instructive.
"Now it but remains for me as the presiding Judge, to carry out the provision of the Constitution that says that the Judge shall not charge the jury in respect to the facts of the case, but shall charge to them the law.
"Under this indictment the charge of murder is made, the defendant, W.T. Jones, is charged with the killing or murdering of his wife. There are two counts in the indictment, the first count charges the killing by the administering of poison, to wit, strychnine, and the second count being a general charge not specifying the drug used. I
charge you that the question which you have for consideration is under the first count of the indictment as stated by one of the counsel for the State. It is for you to say whether it has been proved to your satisfaction, beyond a reasonable doubt that this defendant, W.T. Jones, did kill and murder his wife by administering and causing to be administered strychnine, confine your inquiry to that and not to any general matters alleged or set out in the second count of the indictment.
"In order for you to arrive at a conclusion upon the evidence, I charge you as a principle of law that every man is presumed to be innocent until he is proven guilty beyond a reasonable doubt, that he is presumed to be innocent of any charge against him until he is proved guilty to the satisfaction of the jury, beyond a reasonable doubt. A man so accused has the right to stand mute and say nothing, and counsel for the State has not even the right to comment on the fact that he did not give his testimony, that he did not go on the witness stand and testify in his own case, and if anything has been said by any of counsel for the State that would warrant you in concluding, or lead you to conclude that you would be warranted in considering it against the defendant, — the fact that he has not testified in the case, — you disabuse yourself of that, for that can not be considered against the defendant, the law does not allow that to be commented on, and does not allow any inference to be drawn from it, against the defendant.
"I charge you that where a man pleads not guilty, generally that that puts in issue and denies the whole case made against him, on behalf of the State, leaving the burden on the State to prove his guilt beyond a reasonable doubt. The charge here is murder, the statutory definition of that I will give you. It is the killing of a human being with malice aforethought, either expressed or implied, there can be no murder without malice, malice express or implied. Malice means hatred, hostility or ill will, evil intent or disposition,
and it may be shown by threats, lying in wait, shooting from ambush, or in some such manner, some express evidence of malice, or it may be implied from brutal conduct on the part of the person committing the crime, such brutality as would show a total disregard of human life, such conduct from which the law implies a malicious heart, a heart totally devoid of social duty, and fatally bent on mischief. That is what the law means by malice, and that malice must be aforethought, that does not mean that it must be concealed in the man's heart for any great length of time, it may be conceived in a moment of time, but you must be satisfied that it did exist, that it was aforethought before you can find that the killing was murder.
"The next crime in degree, where a killing is charged, is manslaughter. That is defined under our statute to be any unlawful killing, without malice aforethought, either express or implied, as a killing in sudden heat and passion, that is what manslaughter is.
"Now under the question of evidence, generally there are two kinds of evidence by which facts may be proven, direct evidence, the testimony of witnesses testifying to things coming under their actual observation and which you accept as true or not by whether you believe the witness who testifies to the facts, you may not believe the testimony of a witness even though he be not contradicted, when you have direct testimony on a point in issue, you either find for or against it according to whether or not you believe the witness who testifies to the point.
"Circumstantial evidence is the other kind of evidence, that is where you have a point in issue to decide and no one testifies that it came under his observation, but where the proof of attendant circumstances is relied on. I will give you the technical definition. You can readily see that in many cases unless the law admitted circumstantial evidence as sufficient proof of facts in issue that there would be many cases of crime, such as stealing for instance, where
there would be very little possibility of any one seeing the thing done, and you would have to rely entirely on circumstances, and so the law does allow you to rely on those circumstances and find the party committing the crime guilty on circumstantial evidence, provided it measures up to the required standard.
"The rule as laid down for circumstantial evidence is this: The evidence of more facts than one, which in combination create the presumption that still another fact exists, the test of the sufficiency of this evidence is that the facts which the jury accept as proved can be reasonably accounted for on no hypothesis which excludes the defendant's guilt, that with the theory of his guilt they are harmonious and consistent, and that they point to it so clearly and distinctly as to satisfy the jury of it beyond a reasonable doubt.
"I charge you that the State, in order to prove a man guilty, under a charge of murder, must prove that the defendant killed the deceased, that the death of the deceased was brought about by the act of the defendant, that the defendant did the killing.
"It is charged here in this indictment that this defendant killed the deceased by administering poison to the deceased, now I charge you, gentlemen, that the administering of poison, even though not done by a direct act of the defendant, that is even though he does not administer it by his own hand to the deceased, yet still if it was administered by putting the deceased in such fear as to persuade and induce her to take the poison, then that would be as much an administering of the poison by the defendant as if he had administered it to her by his own hand, and I charge you that if the deceased came to her death by suicide, by her own hand, that if the State has not satisfied you beyond a reasonable doubt that she did not commit suicide, that the deceased did not come to her death by her own hand, then you can not convict this defendant under this indictment, with this one limitation: In order for one who incites to suicide to be
guilty of murder, a casual connection must exist between the incitement and the suicide, the incitement must be, not necessarily the sole cause, but an inducing cause of the crime. Provided this connection is established I charge you that it is the law that the inciter is as truly responsible for the act, and therefore as truly a murderer, as though he had prevailed upon a third person to commit the homicide. A human being is dead as the consequence of his deliberate act, and it would be a reproach to the law if he could escape punishment by electing to bring about the death by the victim's own hand rather than by the hand of a third party. If he employs a third person, the interposition of the will of the third person will not render him less guilty, why then should the interposition of the victim's will. I charge you that as the law, that if a man persuades another to commit suicide, and aids, counsels, and abets him in the commission of the act, by furnishing the means, or putting the means within reach, with the intention of bringing about a condition of mind where the person would naturally attempt to commit such act, where the person would seek such means, and placed such means in the way, so that the person when aroused to that state of mind by his deliberate act, would attempt to commit suicide, then that would be for the jury to say whether that was such participation in the suicide. I will give you an illustration: Where there were two men confined in jail, one under sentence of death, to be hanged, the other prisoner persuaded him to commit suicide and so to evade being hanged, and aided him in preparing the rope with which he hanged himself, aided him, counselled him and furnished him the means whereby he committed the act, that man was held to be guilty of murder, and that is the law in this State.
"Now, upon the law of accidental killing, when a man is charged with killing another and a question fairly arises out of the evidence as to whether the death of the deceased was a criminal act or whether it was accidental death, that
was caused by an accident to the person deceased, or an act on his own part, that is if you were to suppose a case where a person is charged with administering poison to another, unless you are satisfied beyond a reasonable doubt that deceased did not take the poison by mistake, and that the defendant did not administer the poison by mistake, if it was really an accidental death, resulting from a mistake, then you would have to find the defendant not guilty, because the law says that the State must satisfy you beyond a reasonable doubt that the killing was not an accident, accident must be negatived by the State. So if you have a reasonable doubt as to whether or not the death of the deceased was accidental, you have to solve that doubt in favor of the defendant.
"Now the principle of the reasonable doubt remains to be charged to you. That upon the whole inquiry, upon any material point, if you have any reasonable doubt, you have to give the benefit of that doubt if you have any reasonable doubt upon any material point in the case, any material point in your inquiry, you will solve that doubt in favor of the prisoner. That don't mean, gentlemen, any sort of vague fanciful doubt that you may have, it has been defined by our Supreme Court to be a real doubt, a substantial doubt, arising out of the testimony, a doubt for which you can give a reason.
"If under that indictment you find that the defendant is guilty of murder, you will write guilty, which means that he must suffer death by hanging, or you may find a verdict of guilty, with recommendation to the mercy of the Court, which means imprisonment in the State penitentiary for the balance of his natural life. Or you may find him guilty of manslaughter, which means imprisonment from two to thirty years, or if you decide that the State has failed to make out a case, beyond a reasonable doubt, if you have a reasonable doubt as to whether or not the defendant is guilty, you will solve that doubt in favor of the defendant
and write not guilty, and that means that he will go hence without any punishment whatever.
"That covers the case, gentlemen. Take the record and find your verdict. When you reach your verdict, and you must arrive at one of them, the foreman will write it on this indictment and sign his name as foreman with the date."
SUPPLEMENTAL CHARGE.
"His Honor: You may bring the jury out, Mr. Sheriff.
"Mr. Foreman, you have failed to agree upon a verdict?
"Mr. Foreman: Yes, sir.
"His Honor: State whether your differences are upon the facts of the case or upon the law of the case?
"Mr. Foreman: Upon the facts.
"His Honor: I have called you out and had you brought out, Mr. Foreman and gentlemen, to urge upon you the importance of reaching a verdict in the case we are now considering. You have been engaged in the case ever since Wednesday afternoon and have had it under actual consideration, under the charge of the Judge ever since nine o'clock last night, and I want to impress upon you, gentlemen, that you should reach an agreement in the case. The whole testimony is before you, the law of the case has been explained to you and you ought to realize that an immense amount of labor and of talent has been employed in presenting the case to you, and you have it as fairly before you as any jury could have it and there is no reason why you should not be able to decide it. These mistrials ought not to occur, the county is at a great expense in trying the case, and you ought, if possible, reach some conclusion in the matter. Of course, while that is an element that you ought not to consider when a human life is at stake, still you ought to try and reach a verdict. Some one has to do it — some twelve men sitting where you are have to decide this matter — and you don't want it said that you could not agree, that you were brought here and this trial gone through with, the case
presented to you and you could not decide it some way. You don't want to shift your responsibility upon some one else. Some twelve men have to decide the case and it is not a fair thing to do to want to shift the responsibility of deciding the case on some one else by holding out a great length of time and getting the Judge to order a mistrial. I know it is a very hard matter sometimes to decide questions of fact. I know that from my own experience, because I have to decide a great many of them on the equity side of the Court. I know it is hard, and I sympathize with you, gentlemen, but because it is hard is no reason why you should dodge it, I would not want to dodge a case and throw it upon my successor, and I would not want it said that I shirked my responsibility, and I think you, gentlemen, ought to feel that way about it.
"Now, as to the law of the case, I tried to explain that to you on yesterday, but it might be that if I went over some of the points involved in the case I might be able to assist you in arriving at a conclusion, and that I want to do, and I will do so at the risk that I might make some little slip in stating to you the law of the case. You know how important it is to me for every word that I say and every ruling that I make goes down in the record, and if I make any mistake, if in the opinion of the Supreme Court I make any mistake, that causes a reversal of the trial, and I have to be particularly careful in a hotly contested case such as this is, not to fall into any apparent error of law, still I want to aid you, gentlemen, if possible, with the law of the case, though it is a very limited capacity that a Judge has, that the law gives him, he can not state to you anything of the facts; he can not convey to you anything of what his opinion on the facts is, and if you have any idea that the Judge has formed any opinion, you want to dismiss that from your minds, disabuse your minds of that, for the Judge can only give you the principles of law involved in the case, and is not allowed to express any opinion as to the facts. I have told
you the law of murder, what are the necessary elements, the killing of a human being with malice aforethought, express or implied. Manslaughter, the unlawful killing of a human being without malice aforethought express or implied, as you take for example, if a man does some unlawful act and does not intend to kill any one and death results, that would be manslaughter. As if a man struck another with a stick, not intending to kill him but merely to make him suffer, to hurt him, and nevertheless death resulted from the blow, that would be manslaughter. Or if a man administered a does of poison to a person not intending to kill the person to whom it was administered but merely to cause him to suffer, if death resulted, that would be manslaughter, doing an unlawful act but not with the intent to kill, that is what you would call involuntary manslaughter.
"I might charge you, gentlemen, more fully on the subject of circumstantial evidence. As I have explained to you, gentlemen, when you have to decide a fact and the proof of the fact depends on circumstantial evidence the law is that the circumstances must point to the truth of that fact to the exclusion of any other reasonable theory, except that that fact is true. I may be that I can help you to understand that better if I give you a specific case. I will go over a case which happened here in our own State, where a man by the name of Hoyt Hayes was accused of killing his wife up in Oconee county. It seems from the record of the case which I have read that the story which was told by this man was that he was waked up in the night by his wife, who was in a delicate condition and was about to be delivered of a child, and who had expressed great despair and alarm about what might be the result of giving birth to the child, he said that he was waked in the middle of the night by his wife who told him that there was a noise going on about the cattle pen and that he had better investigate it, but that he went out there and while he was gone he
heard the explosion of a gun and that when he came back into the house he looked into the room where his wife had been left and saw her dead with her head blown all to pieces from a double barrelled shot gun which was lying at her side, he immediately went to get his neighbors, he ran considerable distance of two or three miles and got some one whom he knew to go with him, leaving his wife there as he found her without making any further investigation as to whether she were dead or not, having seen his wife there on the bed with the weapon at her hand, when he came back with his neighbor they went in there and found her dead with the gun beside her, and the theory was advanced that she had committed suicide. As soon as the neighbors came in, before anything was disturbed, they found the gun lying by the side of the woman and an iron poker by the gun and on top of the bed by her hand; the theory was that she had lain in bed and put the gun along side of her head with the barrel at her head and had pulled the trigger with this piece of iron and blown her head all to pieces so that her brains were scattered all over the bed around her; that was the theory that was relied upon by the defence to establish suicide, and in addition to that was produced a note claimed to be in her handwriting in which she stated that she had intended to kill herself and that her husband had always been kind to her; those were some of the circumstances of the case and here was one of them, that while the gun was lying along side of her with the barrel at her head and the piece of iron by her side, yet both of her hands were under the cover, and the State relied on that to prove that it was impossible for her to have committed suicide, because there was a fixed fact absolutely inconsistent with the theory of suicide, how could she have pulled the trigger of the gun and blown her head off and then put her hands underneath the cover, there was one theory inconsistent with the woman having committed suicide; there were other circumstances of suspicion in the case, for instance,
the note, it was testified that as soon as the first person came that Hayes ushered him into the room and stated to him that his wife must have committed suicide, must have killed herself, as soon as that person came into the house, instead of taking him into the room where his wife was lying he invited him to a seat in another room, in the front room and when the man was about to take his seat on a chair he called his attention to a book that was lying on the chair, and when the man offered to take another chair he told him no, just to move the book, and when he moved the book out dropped this note purporting to be written by his wife in which she said that she intended to kill herself and stated that he had always been kind to her, so that it would seem by that that the note was prepared in advance and placed in the book and that Hayes was not willing to take the chance that it would be overlooked and took that method of bringing it to the attention of the party who found it, it might have been lost sight of and not discovered, and so a strong basis of his defence might not have been made known. Under that testimony Hayes was convicted and after that the note was taken and submitted to handwriting experts in New York, those handwriting experts said that the note was written by the woman, that it was not manufactured, that there could be no mistake about it, acting on the testimony of those experts, testimony to which I must confess I don't attach much importance, the Governor gave a respite to the man and subsequently pardoned him, but it always appeared to me that even if the handwriting experts had been right, suppose he had compelled her to write that note and place it there where it would be found, that would be a consistent theory, suppose he had taken the gun and forced her to do that, out there in the woods with no one around, that could have been done. That is just an instance that I cite to you in a case of circumstantial evidence. That rule is that circumstances must point to the guilt of the accused, they must be consistent with the guilt of the accused and
inconsistent with any other reasonable hypothesis, any other reasonable theory except his guilt. Take a case in which the circumstances all point to the fact that the defendant did kill the deceased, and they are all consistent with the theory that he did the killing, still if there is some other reasonable theory with which the circumstances are consistent, there you would come in with the reasonable doubt and you would have to reject the proof of his having done the killing and acquit him, because there would be there a reasonable doubt as to whether he did the killing, the circumstances if consistent with some other reasonable theory cannot convict. If they are consistent with the guilt of the accused and inconsistent with any other reasonable theory, then they are sufficient to convict, the evidence is sufficient and you should convict. Any reasonable theory, that don't mean any vague, fanciful theory that may arise in your mind, but you take any reasonable theory that might suggest itself to you, or that might be suggested to you in argument of counsel, you ask yourself, is that a reasonable theory, is that inconsistent with the guilt of the defendant, if it is you ought not to convict on that evidence, if you have circumstantial evidence and nothing else to rely upon.
"Now as to the matter of suicide I explained to you that how in this State a person who forces or persuades another to commit suicide was guilty of murder, as an illustration I stated to you the case in which one prisoner persuaded another to hang himself in jail, and I stated to you that the jury convicted him of murder, in that case the conviction was set aside by the Supreme Court on the ground that in the State of Massachusetts a suicide was not a felony, and that as there was no statute in that State making suicide a felony a conviction would not hold against one who brought it about by participation. In this State it is correct law that the participation in a suicide, persuading a person to commit suicide, and furnishing the means, or putting them
within reach of the person who commits suicide, with the intention of bringing the person to that condition of mind where suicide would be probable, placing the means for committing suicide within easy access of the person, with the deliberate intention that the person should avail himself of such means, in that case it would be murder. That principle was decided in the case of the State v. Lavell , in the city of Charleston, where a man shot his wife and claimed that he was trying to kill himself, that he put the pistol to his head with the intention of killing himself, and that the ball missed him and killed his wife, he claimed that he could not be held for that on the ground that suicide was not a crime in this State. Our Supreme Court held that suicide was denominated a felony in this State and was so set forth in the form of the coroner's verdict: That the deceased came to his death feloniously, etc. If one kills another in the attempt to commit suicide on himself he is guilty of murder or manslaughter as the facts may be proven. That is the law as I tried to explain it to you on yesterday. So I hope, gentlemen, that now you understand the law pertaining to this case, I could not feel that I was doing my duty to this county if I were to let you off with a mistrial after so short a deliberation. Your comfort has been attended to as far as possible. I realize that a great deal of hardship is incident to this kind of service. I take it that I am talking to you, gentlemen, as men who earnestly desire to reach a verdict in this case. If that be not so, then my words are wasted, but I take it that you are such men. If there is any one of you who is not trying to decide this case from the law and the evidence, but has in view some personal reason, then it is a sad thing and very unfortunate. I tell you, gentlemen, that the jury box is the last place where a man should sit and seek to reward a friend or to punish an enemy. When you get in your jury box you should divest yourself of any personal feeling in the matter and strive earnestly to reach the truth.
"`To thine own self be true, and it must follow as the night the day —
Thou canst not then be false to any man.'
"I hope you, gentlemen, will take this case, the testimony as you have heard it and the law as I have given it to you, and try to reach a verdict. Retire to your room."
From sentence on verdict, defendant appeals. Source: CourtListener
