
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1812.
    State v. John Sisson.
    Shooting at a man with a gun or pistol, must be held dangerous; andf where death ensues, and the circumstances of the case afford evidence of express malice, the offender will be considered as guilty of murder-
    Motion for a new trial. Indictment for murder, tried before Judge Nott, in Sumter district.
    
      
      St appeared in evidence, that on the 19th February, 1811, a dark night, the deceaséd, (Naves,) came to prisoner’s house, part of which was occupied by Berwick and his family. Deceased came into a hall, which was common between the prisoner and Berwick. That prisoner came into the hall, and ordered the deceased out, although a stranger to him ; cursed him, and swore he would make him go. Went and got pistols. Berwick persuaded Naves to go, who went into the road near the house, and said he was tbfcn in the public road, and asked no favors; calling on the prisoner to come out. Prisoner went out, and Naves ran. Prisoner returned. The deceased returned, and knocked at one of the windows. He had left his coat and hat in the hurry of his retreat out of the hall. The coat and hat were sent out to him by Berwick. When the deceased knocked at the window, the prisoner went out of the house at the back door, and as he passed the corner, cried out, 44 Damn you, I’ll give you a knocking now !” Soon after he fired a pistol, and mortally wounded the deceased. It was dark'; but a man might be imperfectly seen at a small distance. The subsequent conduct of the prisoner indicated great unconcern, whence it was inferred he shot off the pistol merely to terrify, <Szc.
    Branding, for the prisoner.
    Envm, Solicitor, for the State.
   Bkevakd, J.

I am of opinion the motion, in this case, ought not to prevail. It is perfectly certain that Jacob Naves was unlawfully put to death, and that the prisoner, John Sisson, was the perpetrator of the homicide. The circumstances under which the homicide appear to have been committed, fully warrant the verdict of the-jury.

The charge of the judge delivered to the jury on the trial, as it has been stated by him, was correct, as to the legal principles laid down and explained, and cautiously guarded, as it went to affect the life of the prisoner on trial. If the shooting with a pistol was not intended to kill or wound the deceased, which, however, appears most probable, all circumstances considered, it must have been done, at any rate, to terrify him. This was a wanton, unlawful, and dangerous act; and appears to have been committed without any care or precaution to guard against the mischief which ensued. That the instrument with which the mischief was done, was a dangerous instrument, and likely to occasion death, is evinced by the consequences produced by it. It is not like striking with a stick, not likely to produce that effect. Shooting at a man with a .gun, or pistol, if it bo loaded with powder and ball, must, on all occasions, be held dangerous, if the person shot at be within a distance to which the instrument will carry a ball.

The circumstances of this case afford evidence of express ma. lice.. But, at all events, they evidence strong indications of a hard unfeeling heart, utterly depraved, and insensible to the dictates of social duty, and the calls of humanity.

I am disposed to believe, from the evidence which has been stated and Explained by the judge who presided at the trial, that the prisoner intended the destruction of the deceased ; and that the jury were well warranted in drawing that conclusion from the evidence. But if that were doubtful, still they were clearly authorized in the conclusion which they did draw, that the prisoner was guilty of murder, on the ground that it was a homicide committed willingly and wantonly, with an improper motive, in the commission of a dangerous and unlawful act, the probable consequences of which, was such as did eventuate ; and that these circumstances supplied that malice, by implication or intendment of law, which is a necessary ingredient to constitute the crime of murder.

Authorities cited by counsel in the argument — 2 East. Cro. L. 263. 1 Stra. 481. M’Nally’s Ev. Fort. 256. 1 East. C. L. 218. 2 East. C. L. 236.

The court, unanimously, rejected the motion.  