
    The State vs. Charles Smith.
    In charging the jury, in reference to a voluntary homicide, effected by a deadly weapon, the Judge defined manslaughter to be, “ homicide committed in sudden heat and passion and on sufficient legal provocation,” and again he said, “It is not every killing in passion that the law mitigates down to manslaughetr; it must be passion justly excited by legal provocation." The jury found the prisoner guilty of manslaughter, and on appeal, held, that the terms used to characterise manslaughter were suitable and proper.
    The inadvertent omission by the 'Judge to say any thing about the prisoner’s character, which was proved to be good, and relied upon in the defence, is no ground for a new trial.
    Discrepancies between the testimony of witnesses for the State, as given on the trial, and their testimony, as carefully taken in writing by the coroner at the inquest and signed, by them, were relied on to discredit the witnesses : — Held, tobe no ground for a new trial, that the Judge, in adverting to this matter, said to the jury, that “evidence was often loosely taken, and perhaps no very great weight should be given to these discrepancies.”
    BEFORE MUNRO, J., AT CHARLESTON, FALL TERM, 1856.
    Indictment for tbe murder of Josbua Fowler, on tbe morning of tbe 3d September, 1856, at Summerville.
    According to tbe testimony of tbe several witnesses, (Joseph H. Buckhalter and Frederick J. Fowler, a son of tbe deceased, being tbe principal ones) who were examined for tbe State, it appeared, that on tbe nigbt of tbe homicide, tbe deceased, Joseph H. Buckhalter, Frederick J. Fowler, Smith the prisoner, and some others,' were out from about eight o’clock in tbe evening on a sernading party; that near tbe railroad depot one Bodow kept a liquor shop, at which place they bad called several times during tbe nigbt, and that they were there again at two o’clock in tbe morning; tbe whole party were somewhat merry, but none intoxicated; Smith had drank at the expense of others, but none of the party had tasted liquor at his expense; they were about to separate — • “the break-up dram” having been already taken — when Buokhalter called on “TTncle Josh” (deceased) “to play one more tune, and call on Smith to treat, as he had not treated once to night;” Smith became angry, but said nothing until deceased having played part of a tune, told him, it was his treat; Smith replied with a vulgar and insulting expression, and immediately walked out of the shop, stopping near the gate, a few feet from the door of the piazza; deceased continued playing for half a minute, and then putting down his violin, rose and followed, saying “ Smith did not know who he was addressing;” when deceased reached Smith, he spoke to him, saying, “ you do not know who you are addressing; you are speaking to white people; you are not white yourself;” and as he said this, with his left hand he brushed Smith’s hat— “ made,” as the witness expressed it, “ a sort of wipe down of it,” — and added, “I would not ask much to give you a licking;” as he uttered these words, Smith, who was left handed, was seen by Buokhalter to strike deceased a blow upon the chest with his left hand; deceased immediately returned the blow, and exclaiming, “ Jesus, Joe, the son-of-a-bitch has cut my heart out of me,” reeled off some eight or ten paces, and fell dead; it was ascertained that the wound which killed him, was a stab in the left breast, which reached, it was supposed, his heart; the knife with which it was inflicted was picked up on the spot, and was indentified as Smith’s.
    The principal witness for the defence was Fuller Smith, a lad seventeen years of age; He testified to a state of facts, tending to show, at least much provocation, if not that the blow was given in self-defence.
    The testimony of the principal witnesses for the State as taken in writing by the coroner at the inquest, and signed by them, was given in evidence and much relied on as discrediting the testimony of the same witnesses as now given. The coroner testified that the testimony at the inquest was carefully taken down, and read over to the witnesses before they signed it.
    Smith’s character was also relied on. It was testified that he was “ a quiet and peaceable man ; rather a coward, and more disposed to run away than fight.”
    The report of his Honor, the presiding Judge, is as follows :
    “ The prisoner was indicted for the murder of one Joshua Eowler, at Summerville, on the night of the 2nd, or the morning of the 3rd of September last.
    “ The prisoner was convicted of manslaughter, and he appeals on the accompanying grounds.
    “ In reference to the defendant’s second ground, I would merely state, that the omission with which I am charged was wholly unintentional, and had it been brought to my notice at the time, I should certainly have submitted it to the jury; although, I can hardly suppose that injustice has resulted to the prisoner from such omission — especially when it is considered, that ample amends had been previously made for any inadvertence of mine in that particular, in the force and eloquence with which this topic was pressed upon the consideration of the jury by both of the prisoner’s counsel.
    “Accompanying this report, is the testimony,taken upon the trial.”
    A report of his Honor’s charge, as taken from a newspaper, was printed, and furnished the Court of Appeals on the argument of the case. That report stated, that his Honor, after saying to the jury, it was their exclusive province to consider the facts, charged them, upon the law, as follows:
    “ Homicide is of two kinds — murder and manslaughter. Murder is defined to be the killing of a human being with deliberation; to constitute murder, the principal ingredient is malice. Manslaughter is defined to be homicide, committed in sudden heat and passion, and on sufficient legal provocation, Express malice is where a purpose is deliberately formed to take the life of any one; implied malice is a deduction of law from circumstances. It may be implied from the weapon — as if, for example, a school master should use an unlawful weapon and death ensue, it would be murder. But, there is no malice in manslaughter ; it is a crime, committed in hot blood: for example, where the parties are engaged in mutual combat — inasmuch as it is committed in hot blood, it is manslaughter. It is not every killing in passion that the law mitigates down to manslaughter; it must be passion, justly excited by legal provocation. Where the provocation is slight, and the killing is with a deadly weapon; where the means used are disproportionate to the end of resistance or self-defence, then such killing is murder. Justifiable homicide is where one kills another, either to save his own life, or his person from violence. It is where one is assaulted upon a sudden affray, and there is no other means of escape. It must be shown that the slayer was retreating as far as he could, with the intent to get out of the way.
    “If the fatal blow in this case was struck at the gate, and the jury believe the witnesses for the prosecution, then they should find the prisoner guilty of murder. But here they must look to the alleged discrepancies in the testimony of those witnessess, as taken before the Coroner, and as given in Court — the Coroner said he took it down carefully, as spoken, and he read it over to them as it was spoken — but of this matter the jury were the judges. Evidence was often loosely taken, and perhaps no very great weight should be given to these discrepancies.”
    The prisoner appealed, and now moved this Court for a new trial, on the grounds:
    1. That his Honor erred, it is respectfully submitted, in defining manslaughter, in bis charge to the jury, to be homicide, committed in sudden heat and passion, and upon sufficient legal provocation.
    2. That his Honor erred, it is respectfully submitted, in omitting to lay any stress on, or even to notice, in his charge to the jury, the general good character, and especially the character fox peace and good order, of the defendant, which ought always to weigh much in doubtful cases.
    3. That the verdict was founded on the evidence of hostile, murderous and perjured witnesses, self-contradicted, and that by their own sworn testimony, carefully taken in writing by the Coroner, and otherwise contradicted and discredited, by other witnesses, and by the discrepancies and incredibilities in their own testimony.
    4. That the verdict was against the overwhelming weight ' of the evidence, and ought to be set aside, ex débito justicies.
    
    5. That the verdict was, in the foregoing, and in other respects, contrary to law and evidence, and to the -plain reason and justice of the case.
    
      T. Y. Simons, Jr., Yeadon, for appellant.
    
      Hayne, Attorney General, contra.
   The opinion .of the Court was delivered by

Wardlaw, J.

This case is important to the prisoner, and every case of homicide is important to the State. Although the appeal appears, upon examination, to bring under review little besides the verdict which the jury has rendered upon the evidence, we will notice, with care befitting the occasion, the particulars of misdirection, about which much has been , said in the argument. The complaints amount in substance to a criticism upon the Judge’s CHARGE, as it was reported in a newspaper, and they undertake to show that one word was not the best that might have been' selected, that greater completeness might have been given to certain definitions, that this remark ought to have been introduced; and that one omitted: — not that any thing was said by which the jury could have been misled to the disadvantage of the prisoner.

First. Legal provocation is supposed not to be a proper technical expression, as every sufficient provocation must be something illegal. Judge Gaston in the case of the State vs. Will, 1 Dév. & Bat. No. Ca. Rep., 168, says — “ some causes of passionate excitement are termed ‘legal provocations,’while others have been declared not to be ‘ legal provocations.’ This must not be understood to mean that a man has a legal right to be provoked, but only that the law regards certain offensive acts as • provocations, while it refuses to consider others as such. The latter, though provocations in common parlance are not provocations in a legal sense, and therefore not comprehended in the legal phrase, legal provocations.”

This phrase may be found in the text of other accurate writers, as in 1 East’s P. 0. 238, 242.

In the case before us, the Judge, speaking in reference to a homicide effected by a deadly weapon, so defined voluntary manslaughter, as to require that sudden heat and passion should not only exist, but be excited by “ sufficient legal provocation,” — “ be justly excited by legal provocation.” No doubt was left, that the meaning was to require a provocation of that kind‘which the law"deems necessary to mitigate to manslaughter the guilt of a party, who upon such provocation has slain a human creature by the use of a deadly weapon; and to require, further, that such provocation should be somewhat proportionate to the punishpient inflicted, or, as it is often expressed, should be reasonably sufficient. There is no doubt that this was a just exposition of the law, and it would not be easy to select a more suitable phrase, to express the required provocation so as to guard against vulgar error than that of sufficient legal provocation.”

In the report which has been laid before us, professing to be a mere summary, taken without the aid of a stenographer, “ deliberation” and “ sufficient .legal provocation” are, respectively made to characterize murder and manslaughter; and using the terms in a strict technical sense, this is correct. But deliberation must be understood to mean, not slowness and composure as distinguished from suddeness and excitement, but freedom from the temporary phrenzy, excited by sufficient legal provocation, as distinguished from that phrenzy which the law allows to moderate its rigor in pity to human frailty. A voluntary act, which is without sufficient legal provocation, is deliberate, no matter how sudden or how furious it may be. If, according to the popular acceptation of terms, deliberation should be required to* constitute murder, but every exciting provocation should be held of itself sufficient to mitigate a homicide to manslaughter, many of the most wanton and atrocious murders' would escape deserved punishment. This prisoner has no’ right to complain of the definitions as reported. '

SECOND. ' Nothing was said to the jury about character. The ordinary observations would have been made, if the omission had been called to the mind of the Judge, but nothing was said to oppose or weaken what had -been-urged’ to the jury on this head by the prisoner’s counsel.. Character was one of the circumstances found in the evidence bearing, upon the main facts of the case. What comments a Judge shall in his summing up make upon facts, must be in a great measure left to his own discretion, when he has properly warned the jury of-their-province and responsibility. His mere omission of a topic, which, another would have dwelt on, cannot be complained of, unless it amounts to a misstatement ; and even then an opportunity to correct the omission should be afforded by a suggestion from those who being present, think that they suffer from it, unless it appears to be intentional and not inadvertent.

In this case the character of the accused could have been only remotely influential. That he had the reputation of being sober, industrious and ordinarily peaceable, is consistent with Ms extreme violence on a special occasion, as the sad experience of our Courts tob often shows. That he was “ rather a coward, moré disposed to run than fight,” might, according to different views and circumstances, make more or less probable, his unnecessary perpetration of a bloody deed.

Third. Complaint is made that the Judge, after bringing to the notice of the jury the discrepancies, between the testimony of the witnesses on the part of the State given in Court, and their depositions taken by the Coroner, and after repeating what the Coroner had testified concerning -his manner of taking the depositions, and after leaving the jury to judge of the matter, said that “ evidence was often loosely taken, and perhaps no very great weight should be given to these discrepancies.”

The general observation, as applicable to the manner in which testimony is often taken and written down by persons who act as Coroners, is lamentably true. The Coroner’s office is one which occasionally requires a high degree of intelligence, skill and accuracy, but generally its duties are performed in a most perfunctory manner. Often the report of testimony; which is returned with an inquisition super visum corporis, is worse than useless — deficient in the information which it should give, and serving only to perplex witnesses and protract the trial, by the tedious references wbioli in examination and argument are usually made to it. Plain men in narrating, generally omit many things which, skilful advocates would extract from them by examination and cross-examination; the interruptions occasioned by an attempt on the part of an ordinary writer, to write down every word used by a witness, makes the narrative more bungling and confused; an attempt to condense the testimony without interrupting the witness, gives widely different results from the hands of different writers, according to various abilities and habits of mind and body, even when the writers are practised in the business: when the writer is inexperienced and the witness is ignorant, there is small assurance that the writing read over and acknowledged, contains even the substance of what was deposed.

But in this case it is said that the writing was carefully done by a competent person, and that the discrepancies are not omissions, but contradictions. The remark of the Judge did not then do more than make a doubtful suggestion to the jury, of matter which should enter into their consideration in weighing the effect of these discrepancies. There was no withdrawing from the jury of any thing in the evidence on the subject, and a much more decided expression of the Judge’s opinion would have been no interference with the right of the jury to decide the facts submitted to them.

If the Coroner was correct, these discrepancies seem to show that there was some ground for distrusting the two principal witnesses on the part of the State. If they had been confidently relied on, the verdict according to the opinion of the Judge, should have been guilty of murder.

Could it have been less than manslaughter, if they were wholly disbelieved as to every thing in- which they were not corroborated by the evidentia re\ or other witnesses ? The death of the deceased, caused by a knife in the hand of the prisoner, is established beyond reasonable doubt. If then Fuller Smith’s account is taken to be, in all respects, correct, there was a killing with a deadly weapon upon sufficient legal provocation, but much must be conjectured to maké that killing an act of excusable self-defence. How could the prisoner have had reasonable grounds for believing that he stood in such imminent danger of death or of great bodily harm, as to require the use of the knife, — that most dangerous and most treacherous of all instruments — in the dark, and without one cry of fear, or word of warning, when so easily he could have avoided the conflict ? But we will not comment on the testimony. The jury have decided that the case was not one of self-defence, and in that opinion we entirely coincide.

The motion is dismissed.

O’Neall, Withers, Whither, and MuNro, JJ., concurred.

Motion dismissed.  