
    8651
    STATE v. SPEARS.
    1. Murder. — Where the evidence in a murder case warrants only a verdict of guilty of murder or an acquittal, an instruction, “If the testimony satisfies you beyond a reasonable doubt that A killed B, then the burden shifts to A to explain it and to satisfy the jury that the law excuses him. Because nothing else appearing and it appearing that one man killed another, the presumption is the killing was unlawful,” is not error.
    
      2. Ibid. — Self-Defense—Charge.—In such a case it is not a charge on the facts for the Judge to instruct that self-defense is the pivotal question in the case.
    Before Gary J., Marlboro, March term, 1913.
    Affirmed.
    Indictment against Wilson Spears for murder. Defendant appeals.
    
      Mr. J. K. Owens, for appellant,
    cites: Proof of killing alone does not raise presumption of guilt: 1 Archbold 753; 53 N. Y. 16; 36 Texas 533; 49 Cal. 610; 14 Fla. 499; 39 S. C. 301; 6 S. C. 185; 15 S. C. 153; 30 S. C. 74. Hliminating all except self-defense was a charge on the facts: 87 S. C. 407; 3 Bish., sec. 697; Clarke 167; 50 S. C. 433; 79 S. C. 184.
    
      Solicitor J. Monroe Spears, contra.
    September 20, 1913.
   The opinion of the Court was delivered by

Mr. Justice Hydrick.

This is an appeal from sentence upon conviction of murder, with recommendation to' mercy. The testimony is very meagre and indefinite as fio the details of_ the quarrel 'between the defendant and the deceased which seem to have arisen immediately before the fatal encounter, and ha have led up' to1 it. As well as we can gather from the testimony, there was a frolic at the house of a negro' woman, named Milly Kelly, which was attended by the defendant, the deceased, and others. The deceased and Abram Mack got into a row in the house, and they and Oscar Mack, Abram’s father, went out to settle their difficulty. While they were SO' engaged, the defendant approached them, and asked the deceased for a match. The deceased replied, with an oath, that he had no match. After some bandying of words and oaths at each other about the match, each went home and got his gun and returned. The defendant’s home was about half a mile away. When they met again, on their way back to the Kelly house, each shot the other. The defendant testified that, as he stepped into a certain path on the way back, the deceased called upon him to “halt;” that he looked and saw deceased holding up his gun to- shoot, and he did shoot, and that he (defendant) threw up his gun, as quickly as he could, and shot. He explained his returning to- the Kelly house by saying that he left his sister there and went back to- escort her home, and that he carried his gun to- protect himself.

The first exception, assigns- error in the following instruction: “If the testimony satisfies- you beyond a reasonable doubt that Spears killed Thomas, then the burden is shifted on Spears to explain it, and to- satisfy the jury that the law excuses him. Because, nothing else appearing, and it appearing that one man killed another, the presumption is the- killing was unlawful.”

While it may not be true, as- an abstract proposition, applicable under all circumstances, that the mere fact that one man has killed another will raise the- presumption that the killing was unlawful, yet the charge o-f a trial Judge must always be construed as applicable to the facts o-f the case on trial. When so- applied, there was no- error in the instruction above- quoted. The killing was done with a deadly weapon. There was no- legal provocation in the first encounter of words, which co-uld have -reduced the killing to- manslaughter. If there had been, there was ample cooling time. Therefore, in no- possible view o-f the evidence- would the jury have been warranted in finding a verdict o-f manslaughter. Under- the- undisputed evidence, the- defendant either killed the decease-din self-defense-, and was entitled to- acquittal, o-r he was guilty o-f murder. That being so-, • and the jury having found a verdict of murder, the assignments of error in the charge as to the law oí manslaughter are immaterial, and need not be considered.

On the law of self-defense, the Court charged: “The law of self-defense arises out of necessity, actual or presumed. Right there is the pivotal question in the case.” The error assigned is that this was a charge on the facts, in that it directed the minds of the jurors solely to the defense, and left out of view all questions relative to1 the State’s case, including the question of malice: The undisputed evidence warranted the charge. Under the evidence, there was no reasonable ground for any contention as to the fact that defendant had killed the deceased, and, as we have shown, there was no legally possible ground for any other than a verdict of murder or of acquittal on the plea of self-defense. Therefore, the Judge was clearly right, when he said that was the pivotal point in the case. In fact and law, it was the only point in the case.

Judgment affirmed.  