
    11079
    STATE v. PORTEE
    (115 S. E., 238)
    1.Indictment and Information — Indictment for Murder by Striking With Automobile Held not to Charge Distinct Offenses.— An indictment for murder by striking deceased with plaintiff’s automobile, although reciting that accused “did make an assault” with his automobile and did “run against, strike, throw to the ground, run over, crush, bruise and wound” deceased, held not objectionable as charging three or more distinit offenses, under Cr. Code 1912, § 87, as to indictment for murder.
    2. Criminal Law — Conflicting Evidence Properly Submitted to Jury. — Where testimony is susceptible of more than one inference, it is properly submitted to the jury.
    3. Criminal Law — Not Error to Fail to Charge Where no Charge Requested. — The failure of the trial Court to charge on a certain aspect of the case cannot be assigned as error, where the Court was not so requested.
    4. Homicide — In Prosecution for Murder by Striking With Automobile, Instruction as to Whether Accused’s Negligence Was Proximate Cause of Death Held not Required. — In prosecution for murder by'running into deceased with an automobile, luid, it was not error to fail to charge the jury that accused’s negligence must be shown to have been the .proximate cause of deceased’s death beyond a reasonable doubt.
    
      5. Criminal Law — Charge on Implied Malice From Use of Deadiy Weapon or Dangerous Instrumentality Held not Charge on the ‘ ■ Facts.- — In trial for murder by running into deceased with automobile, a charge that “implied malice is such as you have a right to infer from the use of a deadly weapon, as in this case, you have a right to-infer malice from the reckless handling of a dangerous in- . strumentality until the circumstances show that -it. was not of that character,” held not erroneous as a charge on the facts; it being the apparent intention of the trial Court simply to charge the jury that-it was for them to draw the inference from the testimony, as . to implied malice, in the instant case. .
    6. Homicide — In Prosecution for Murder by Running Into De- . ceased With Automobile, Charge Referring to Law of Manslaughter in Personal Encounter Held not Erroneous. — In prosecution for murder by running into deceased with automobile in which the jury had' the right under the testimony to find a verdict . of manslaughter against accused, held,, it was not error to mention in the charge the different kinds of manslaughter, such as manslaughter in cases of personal encounter, by way of illustration.
    7. Homicide — Illustration in Charge Held not Prejudicial. — In prosecution for murder by running into deceased with automobile, a charge stating, in part, “Now, a familiar example given in the books is, where a man rides a horse at full speed upon a crowded thoroughfare and runs over some man and kills him, the law says he is supposed to intend the natural consequences of his wanton conduct, and although he may not know the man whom he kills, may not have any feelings towards him at all, his reckless, high-handed conduct has supplied it, or you would infer from his reckless, highhanded conduct that it was done maliciously, and the law characterizes it as murder,” held not prejudicial to accused’s rights.
    8. Criminal Law — Refusal to Set Aside Verdict for Jury’s Misconduct not Discovered Until Verdict Had Been Rendered Held not Abuse of Discretion. — Refusal to set aside verdict of manslaughter in a murder trial and to award a new trial to accused because of • discovery, after rendition of the verdict, that a juror had expressed himself adverse to accused before the juror was sworn in the case, held not an abuse of discretion.
    Before Gary, J., Lexington January, 1921
    Appeal dismissed.
    , Russell Portee, Jr., convicted of manslaughter and appeals.
    . 'The' indictment and charge referred -to in the opinion were as follows:
    
      Indictment
    
      “ * * * The jurors of and for the County aforesaid, in the State aforesaid upon their oath present:
    “That Russell Portee, late of the County and State aforesaid, in the year of our Lord one thousand nine hundred and twenty, with force and arms, at Lexington, in the County and State aforesaid, in and upon one John C. Turner, feloniously, willfully and of his malice aforethought, did make an assault, and that the said Russell Portee, him, the said John C. Turner then and there feloniously, willfully and of his malice aforethought, with a certain heavy and powerful automobile, which he, the said Russell Portee, was operating and driving at a high, careless, reckless, willful, wanton and unlawful rate of speed, and in a highly careless and reckless manner in, on, along and over a public highway, the same being one of the leading and principal highways or thoroughfares leading from the town of New Brookland in a westerly direction to the town of Lexington, in said County and State, and while the said Russell Portee was so driving said automobile, in a careless, reckless, dangerous and unlawful rate of speed and in a grossly reckless and careless manner, in a westerly direction, in a densely populated community just without and near the town of New Brookland, and at or near the intersection of two public highways or streets, where many people were known to travel and people were liable to be traveling and moving at any and all times and hours of the day, did, feloniously, willfully and of his malice aforethought, with said automobile, while driving at the rate and in the manner aforesaid, him, the said John C. Turner, run' against, strike, throw to the ground, run over, crush, bruise and wound, or cause the said automobile to run against, strike, knock down, crush, bruise, and wound, giving to the 'said John C. Turner'thereby in and upon the body of him, the said John C. Turner, mortal wounds, of which said mortal wounds the said John C. Turner then and there died.
    “And so the jurors aforesaid; upon their oath aforesaid; do say that the said Russell Portee, him, the said John' C. Turner, then and there, in the manner and by the means aforesaid, feloniously, willfully and of his malice aforethought, did kill and murder against the form of the Statute in such case made and provided, and against the peace and dignity of the State.”
    Judge's Charge
    '“’*** a felonious killing is either murder or manslaughter. He is charged with a felonious killing; he is charged with manslaughter just as much as he is charged with piurder; and I will explain to you the difference, and I hope you will see the distinction when I explain it to you. ‘Murder’ is the killing of a human being with malice. That malice may be either expressed or implied. ‘Express malice’ is such as is manifested by some outward demonstration, such as lying in wait for one’s victim, or making threats to take his life. That is express malice. ‘Implied malice’ is such as you have a right to infer from the .use of a deadly weapon, or, as in this case, you have a right to infer malice from the reckless handling of a dangerous instrumentality until the circumstances show that it was not of that character. • '
    ; “Now, I repeat: ‘Murder’ is the felonious killing of a human being with malice. There is also a lower grade of felonious killing called ‘manslaughter.’ The law recognizes that there are times in a man’s life when he is placed in such a situation that he does not act from design, but where he acts from impulse. In a proper case of that sort, it will mitigate his'offense,-although it does hot excuse it.
    “Just to give you an illustration oh that, I will indicate what I am talking about, ahd what I want to do is to make myself plain to you. Suppose I were to approach you and spit in your face; the law looks upon that as such an indignity as is calculated to make you lose control of yourself, and if, smarting under that insult, you should kill me, the law would not say it is murder; the law would say you ought not to have killed him, but the law does not call it murder, but will call it manslaughter; you acted upon impulse and not upon premeditation. There is an absence of malice, and that is the distinguishing difference between murder and manslaughter. In murder there is the presence of malice, which is either expressed or implied from the reckless use of a dangerous instrumentality, or, rather, it is a homicide from the use of any other deadly weapon, and, as I say, you have a right to infer malice from those things; but if the testimony and the surrounding circumstances negative that idea, then there is no room for the presumption or inference.
    “I have told you what murder is, and what manslaughter is. Now, the defendant says that, although he ran the automobile over him, the killing was through misadventure, through accident. I should have told you in the beginning that a homicide may be either excusable, or it may be felonious. If it is a felonious killing, it is either murder or manslaughter. It is excusable if it is a killing that.is done under circumstances which the law will excuse. That is the difference between the two kinds of killings — excusable killing or a felonious killing.
    
      “A killing that is done through accident presupposes that the accident was brought about through no fault on the part of the man who did the killing. That is one of the ingredients of a killing by misadventure, that it is a killing by accident through no fault of the party who does the killing.
    “You can very well understand how a man may sometimes take the life of a human being under circumstances where he cannot prevent it. Just to give you an illustration: Suppose you are driving your horse and buggy up the street' at a proper rate and in a proper way, and a child suddenly jumps in front of your horse and is trampled to death; that would be a homicide through misadventure, through no fault of the party who brings about the killing; but in order to constitute a homicide through misadventure, there must be an accident, through no fault of the party who brings it about. If a party is acting with a dangerous instrument or instrumentality in a reckless way, in such a reckless way as to show utter disregard for human life, and death results from that, it is murder; that is what the law calls murder. Now, a familiar example given in the books is, where a man rides a horse at full speed upon a crowded thoroughfare and runs over some man and kills him, the law says he is supposed to intend the natural consequences of his wanton conduct, and although he may not know the man whom he kills, may not have any feelings towards him at all, his reckless, high-handed conduct has supplied it, or you would infer it from his reckless, highhanded conduct that it was done maliciously, and the law characterizes it as murder.
    “There is another phase that I want to call specifically to your attention. I have explained the difference between murder and manslaughter, and here is the distinction the law draws, as I understand it: If you are negligent in the handling of a dangerous instrumentality- — now, mark you, I said negligent — not handling it in a reckless disregard of human life, in a high-handed way and in showing a mind that is fatally bent on mischief, but if you are using a dangerous instrumentality negligently, and death results to some one, that would be a foundation for manslaughter. That is the difference, and I want you to mark the difference between the handling of a dangerous instrumentality in such a reckless way as to show an utter disregard for human life, which would be a foundation for murder, and the handling of a dangerous instrumentality in a negligent way. If one is killed under those circumstances, not because he is handling it in a high-handed way showing that he is utterly disregardful of human life, but if he is using it in a negligent way, the law says that would be manslaughter.
    “Now, what is negligence? ‘Negligence’ is the failure to observe due care, or is the doing of what an ordinarily prudent person would not do under the particular circumstances, or the failing to do that which an ordinarily prudent person would do under the circumstances. If this defendant was guilty of conduct of that kind, with a dangerous instrumentality, and death resulted as a' consequence of that, then that would be a foundation for manslaughter, which- is very different thing from murder.
    “Now, gentlemen, there is another phase of the law. If I give you law that is not sound, there is a. tribunal that will correct me. I will be appealed from to the Supreme.Court, and any mistake that I make will be promptly corrected.
    “When any one violates the Statute law of the State, when one is violating the law as laid down by our Legislature, that is negligence in itself — now, mark that. Now, in order to prevent injuries upon the public highways, our Legislature has gone as far as it could to enact laws, and calls upon the citizens to obey those laws. When a citizen does not obey those laws, he is acting negligently. That is negligence per se, negligence in itself — the failure to obey the law of the State. Now, what does the law require of one who drives an automobile along the public highways? It requires one not to exceed a speed of 25 miles an hour under any circumstances; under no circumstances shall he exceed a speed of 25 miles an hour.
    “When one approaches where a thoroughfare crosses a public highway or street; he must bring his automobile to a speed not exceeding 6 miles an hour, and, if the necessity of the case requires it, he shall bring his automobile to such speed as is safe under the circumstances, and shall at all times have his machine under control. That is what our Legislature has said in order to prevent accidents or killings or injuries upon the highways. When one disregards those laws as laid down by our Legislature, then he is acting negligently, and if it is a dangerous instrumentality, and death results to some one, it may be a foundation for manslaughter.
    “Now, gentlemen, there is another phase of the law that I want to repeat to you. The burden is upon the State to show that this was a felonious killing, that it is not an accidental killing, that is a killing through misadventure, through no fault of the party who did the killing. The burden is on the State of South Carolina; it must show that it was a felonious killing beyond a reasonable doubt.
    “Now, what is a ‘reasonable doubt?’ It is hard to give you any term that will give you any clearer conception of it than the words that are used; but it may be said to be a substantial doubt produced in your minds by the evidence, not a whimsical, fanciful doubt, but a substantial doubt produced of that kind, as to whether it is a felonious homicide, it is your duty to acquit him.
    . “Now, gentlemen, I intended to tell you in the language of our Supreme Court what ‘malice’ is, as a further definition in addition to what I have already told you. ‘Malice’ is a term of art implying wickedness and excluding a just cause or excuse. It may be implied from an unlawful act willfully done until the contrary be proved. It is also defined to be the willful or intentional doing of a wrongful apt without just cause or excuse.
    ‘-‘Now, gentlemen, in conclusion, I want to-tell you it makes no difference whether the defendant knew this man of not; it is not essential that he should have set out to take his life; that is not what is necessary for the State to prove. But it is necessary for the State to prove to your satisfaction beyond a reasonable doubt that he was either handling a dangerous instrumentality in a reckless, high-banded way, ip such a way as to show an utter disregard for human lifé,' in which case it would be a' foundation- for murder; or the State must show that he was negligently handling a dangerous instrumentality and death resulted to the deceased as alleged. In that case it would be a foundation for manslaughter. I have told you that ‘negligence’ is the failure to observe due care, or is doing that which an ordinary prudent person would not do under the • particular circumstances, or the failing to do that which an ordinarily prudent person would do under the’ same circumstances; and I told you the failure to observe the law of the land was negligence, negligence within itself. So, when you go to your jury room, you will inquire whether this man is guilty of a reckless disregard of human life by the way in which he handled that machine, and did death result from a reckless disregard of human life. If you find it did not, you will go a step further and say did death result from the negligent handling of a dangerous instrumentality, which would be a foundation for manslaughter.
    “I do not know of anything else to tell you. I hope you approach this case as I do, with a desire to see the law vindicated, but not to wreak vengeance upon any individual. You and I are supposed to be disinterested; we are here to carry out the law, and I have tried to carry out my part of it to the best of my ability. I have tried to keep off your province, which is to find the facts. You are supposed to accept the law as I give it to you, and I hope- that you will not invade my province, but accept the law as I give it to you, and apply it to the facts as you find them, and find' a verdict accordingly, no matter whom it hurts.' * '* * ”
    
      Messrs. Timmerman & Graham, for appellant,
    cite: Indictment set up three distinct offenses under Secs. 601, .602, 612, Crim. Code 1912. Not permissible: 1 Strob., 455; 2. Brev., 487; 1 Spear, 305; 1 Spear, 310; 1 Rich., 260; Bish. Crim. Proc., Sec. 432; 10 Enc. PI. & Pr., 532. Violation of law as to speed did not establish that defendant, was guilty of manslaughter: 109 S. C., 273; 114. S.--C.-, 262. 
      Negligence of deceased appeals from testimony and new trial should have been granted: 113 „S. E., 476; 113 S. E.,’ 351; 112 S. E., 823; 110 S. E., 78; 110 S. E., 117; 110 S. E., 118; 110 S. E., 398; 110 S. E., 927. Failure to charge as to burden of proof on the State to prove negligence was error: 111 S. C., 59; 109 S. C., 273; 115 S. C., 216; 104 S. C., 259. Charge should be full: 153 U. S., 625. Charge on facts: 109 S. C., 117. Charge inapplicable to facts of case was error: 103 S. C., 277; 109 S. C., 117; 150 U. S., 422; 115 S. C, 216; 72 S. C., 195; 103 S. C„ 280. Where improper juror has been accepted in ignorance verdict should not stand: 104 S. C., 357; 114 S. C., 154; 112 S. C., 95; 112 S. C.,' 142; 111 S. C., 467; 103 S. C., 220; 90 S. C., 434. Presumption of innocence: 72 S. C., 201.
    
      Mr. T. C. Callison, Solicitor, for the State.
    December 29, 1922.
   The opinion of the Court was delivered by

Mr. Chiee Justice Gary.

The following statement appears in the record:

“The defendant while operating an automobile in the street or highway, near the town of New Brookland, Lexington County, on the 13th day of --, 1920, struck and killed one J. C. Turner.”

The deceased in crossing the highway from the west to the east side, and while in the street, a motorcycle passed just in front of him, and the automobile operated by the defendant was some 40 or 50 feet in rear of the motorcycle, and on the extreme right of the highway, and when defendant’s automobile was near deceased, instead of his proceeding on across the street or standing still, he jumped backwards in front of defendant’s automobile, and was struck and so injured that he died in a short time thereafter. At the January term of the Court of General Sessions for Lexington County; the defendant was indicted for murder. When the ca§e was called for trial, the defendant moved the Court to- quash the indictment, on the ground that three or more distinct offenses were charged in thé one and only count contained in the indictment, and.that two or more offenses should not be united in the same count, and that the indictment was bad on account of duplicity and- multifariousness.

The motion having been overruled, the defendant entered a plea of not guilty, and a jury was empaneled and after the taking of the testimony, the argument of counsel, and the charge of the Court, the defendant was found guilty of manslaughter, whereupon he moved the Court to set aside the verdict for a new trial, on the several grounds set out in the record. The motion for a new trial having been overruled, the Court sentenced the defendant- to three years’ imprisonment, from which judgment he appeals and asks for a reversal of the same upon the exceptions contained in “this record.”

A copy of the indictment and of the entire charge will be reported. . . '

The exceptions will be considered in regular order.

The first exception is as follows:

(1) “Because the indictment shows in the one and only count contained therein that the defendant is charged with three or more distinct offenses, which could not be united in one count, and that his Honor erred as a matter of law- in not so holding and quashing the indictment.”

Section 87, Criminal Code of 1912, is as follows:

“Every indictment for murder shall be deemed and adjudged sufficient and good in law, which in addition to setting forth the time and place, together with a plain statement, divested of all useless phraseology of the manner in which the death of deceased was caused, charges that the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased.”

The indictment herein was a substántial compliance with the said requirements, and this exception is overruled.

The second exception is as follows:

(2) “Because the verdict is contrary to the weight of the testimony, in that it plainly shows that the deceased, J. C. Turner, who was crossing the street or highway, jumped backward in front of the automobile and was struck, and that his death was caused by his own negligence without which it would not have occurred.”

The testimony was susceptible of more than one inference, and therefore was properly submitted to the jury. This exception is, likewise, overruled. .

The third exception is as follows:

(3) “Because there is no reasonable inference that could be drawn from all of the testimony that would support a verdict of felonious killing, no reasonable inference can be drawn that will support that kind of a verdict, when the testimony plainly shows that the defendant who was operating the automobile was on the extreme right hand side of the'street or highway, and the deceased, having been in or near the center of the street, jumped backward in front, of the automobile and was struck by it, and his death was caused by his negligence in jumping backward in front of the machine, and his Honor erred as a matter of- law in not so holding and granting the defendant a new trial.”

What has already been said shows that this exception cannot be sustained.

The fourth exception is as follows:

(4) “Because the Court did not charge the jury the law applicable to' the facts of this case as he is required to do, in that he failed to charge the jury that if the defendant was negligent in operating the automobile, running it at a rate of speed forbidden by law, the jury should acquit him unless the State prove beyond a reasonable doubt that the negligence of the defendant was the proximate cause of ■the death of the deceased. That the State was bound to satisfy the jury beyond a reasonable doubt that the death of the deceased, Turner, was brought about' by the negligence of the defendant, and that his negligence was the proximate cause of Turner’s death.”

The failure of his Honor, the presiding Judge, to charge in the manner stated in the exception, cannot be assigned as error, for the reason that he was not so requested. State v. Adams, 68 S. C., 421; 47 S. E., 676. If it was deemed necessary numerous other decisions could be cited.

Furthermore, his Honor, the Circuit Judge, charged this proposition:

“Now, gentlemen, there is another phase of the law, that I want to repeat to you. The burden is upon the State to show that this was a felonious killing, that it is not an accidental killing; that is, a killing through misadventure, through no fault of the party who did the killing. The burden is upon the State of South Carolina; it must show that it was a felonious killing beyond a reasonable doubt.”

The question of proximate cause is applicable to civil actions, while in criminal cases the testimony must establish the guilt of the prisoner beyond a reasonable' doubt. This exception is overruled.

The fifth exception is as follows:

(5) “Because the Court erred in charging the jury: ‘Implied malice is such as you have a right to infer from the use of a deadly weapon, as in this case, you have a right to infer malice from the reckless handling of a dangerous instrumentality until the circumstances show that it was not of that character. The error being that it was a charge on the facts and placed the burden on the defendant to show that it was not a dangerous instrumentality under the circumstances of this case, whether reckless or negligent be considered, whereas the burden was on the State that it was a dangerous instrument and was also a charge on the facts.”

His Honor, the Circuit Judge, simply meant to charge the jury that it was for them to draw the inference from the testimony, as to implied malice, in the case then under consideration. The charge, in its entirety, shows beyond question that such was his intention. This exception cannot be sustained.

The sixth exception is as follows:

(6) “The Court erred in charging the jury the law of manslaughter in cases of personal encounter, as the charge had no application to the case at bar, was foreign to the issue being tried, and the only effect it could have had would be to confuse the minds of the jury.” '

As the jury had the right under the testimony to find a verdict of manslaughter against the defendant, it cannot be successfully contended that it was error to mention the different kinds of manslaughter, by way of illustration. The exception is overruled.

The seventh exception is as follows:

(7) “The Court erred in charging the jury: ‘If you are using a dangerous instrumentality negligently, and death results to some one, that would be a foundation for manslaughter.’ The error being that the charge entirely disregarded the doctrine of proximate cause, which was of vital importance in this case, and which he should have told the jury.”

The only error assigned is that the charge disregarded the doctrine of proximate cause. We have already shown that such doctrine has no application to criminal cases; and that his Honor, the presiding Judge, charged the jury that they could not render a verdict of guilty, unless they were satisfied of the defendant’s guilt beyond a reasonable doubt. This exception is overruled.

The eighth exception is as follows:

(8) “The Court erred in repeating the above charge in the following language: ‘When one disregards those laws as laid down by our Legislature, then he is acting negligently, and if it is a dangerous instrumentality and death results to some one it may be a foundation for manslaughter.’

The error being that the charge entirely disregarded the doctrine of proximate cause, which was the vital question at issue in this case, upon which point the Court should have given the jury the law of proximate cause.”

This exception is overruled for reasons already stated.

The ninth exception is as follows:

(9) “The Court erred in charging the jury: ‘Now, a familiar example given in the books is, where a man rides a horse at full speed upon a crowded thoroughfare and runs over some man and kills him, the law says he is supposed to intend the natural consequences of his wanton conduct, and although he may not know the man whom he kills, may not have any feelings towards him at all, his reckless, high-handed conduct has supplied it, or you would infer it from his reckless, high-handed conduct that it was done maliciously, and the law characterizes it as murder.’ The error being that the charge so given was wholly inapplicable to the facts of this case and could have had no other effect than to becloud the minds of the jury and made them to believe that if a man was running an automobile at a rate of speed greater than that allowed by law, and death resuited to any one, that he would be guilty of a crime the person so killed was guilty of negligence, and his negligence was the proximate cause of his death and with which negligence on his part he would not have killed.”

This part of the charge was merely illustrative, and it cannot successfully be contended that it was prejudicial to the rights of the appellant, especially when the charge is considered in its entirety. The exception is overruled.

The tenth exception is as follows:

(10) “His Honor erred in charging the jury: ‘There is another phase that I want to call specifically to your attention. I have explained the difference between murder and manslaughter, and here is the distinction the law draws, as I understand it: If you are negligent in the handling of a dangerous instrumentality — now, mark you, I said negligent, not handling it'in a reckless disregard of human life’, in a highhanded way and in showing a mind "that is fatally bent upon mischief; but if you are using a dangerous instrumentality negligently, and death results to some one, that would be a-foundation for manslaughter. That is the difference, and I want you to mark the difference between the handling of a dangerous instrumentality in such a reckless way as to show an utter disregard for human life, which would be a foundation for murder, and the handling of a dangerous instrumentality in a dangerous way. If one is killed under those circumstances, not because he is handling it in a highhanded way showing that he is utterly disregardful of 'human life, but if he is using it in a negligent way, the law Rays that would be manslaughter.’• The error being that in thus charging the law his Honor did not tell 'the jury the law of proximate cause, and the charge thus given to the jury was calculated to and did impress-them with the idea that his Honor believed the defendant was either guilty of murder or manslaughter. If the defendant was negligent in handling the automobile, no matter whether death of the deceased was caused by his own negligence as an approximate cause of it.”

The only ground of error assigned relates to the doctrine of proximate cause, which has no application to criminal cases. The rule of the criminal law, in accident cases resulting in death, is that the State must prove beyond a reasonable doubt that the negligence of the accused caused the death of the deceased — a doctrine entirely distinct from that of proximate cause. This exception is overruled.

The eleventh exception is as follows:

(11) “Because the juror, Curtis Derrick, had expressed himself adverse to the defendant before he was sworn as a juror in this case, and was therefore incompetent as a juror to sit upon the trial of this case, and his Honor erred as a matter of law in not so holding and setting aside the verdict and awarding a new trial to the defendant.”

The conduct of the juror was not discovered until the verdict had been rendered. The appellant’s attorneys, however, have failed to satisfy this Court that his Honor, the Circuit Judge, erroneously exercised his discretion in refusing to set aside the verdict, on the ground mentioned in the exception.

The twelfth exception is as follows:

(12) “The Court erred in charging the jury: ‘Implied malice is such that you have the right to infer from the use of a deadly weapon, or, as in this case, you have a right to infer from the reckless handling of a dangerous instrumentality until the circumstances show that it was not of that character.’ The error being: First, that it was a charge on the facts in violation of-the constitutional inhibition - against charging on facts; and, second, that it was in violation of the well-established rule that malice may not be inferred from the mere fact of the killing when all of the testimony was brought out on the trial of the cause, but the State who asserts malice must prove it-beyond a reasonable doubt.”

What was said in considering the other exceptions, especially the fifth, shows that this exception cannot be sustained.

Appeal dismissed.  