The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1894-01-17
Continued from first page.

able doubtn This Court affirmed the doctrine.
Judge himself in State Jackson, 80 S. Co. 80 charged
the ury in way wish he had in Mcintosh He said
when defendant to make out his defense of sede-
fens it duty prove by such preponderance of the
testimony will make when come to pass on the whole
case still have reasonable doubt to the defendants guilt"
In State y. Senanaers, &c S. c.. 479.
Judge Norons charge the jury held to be erroneous
and furnish ground for trial. because it was Ambiguous
but calculated impress the jury with the idea that defendant
charged homicide make out his plea of sedefense by
more than the preponderance of theevdence.'
There stronger this for granting new trial
when Judge Norton instructed that lit necessary for the de
ndant to prove his innocence by preponderance of the e
mony" For in the Summers he had charged more mildly
that he defendant must prove sedense by such prepon-
derance of the testimony" &c.
Chief Justice McIver, in State Bodte, imposes no
Judge Norton in this He says "A DEFEND
ant up special only required de-
fense this course subject to the general rule as TO
reasonable doubt upon the whole case 80 S. C.. 49,
think clear the light of the doctrines and cases clte
that the Trial Judge imposed upon the defendant
Mcintosh heavier burden than the law requires when ne
charged jury that in order to make out case OF
fen necessary the defendant to provs by
preponderance testimony On this ground alone we think
the defendant is entitled to new trial.
Not Clear Cut.'
Our Fifth ground of appeal alleges error the Circuit judge
because when his Honor was requested to charge the jury
that although ordinarily presmes malice from the use
of deadly weapon this not the where the State intro
testimony to the facts and circumstances attending the
homcde and having sad Il charge you he qualified by
in the direct stating indicating what part Of
the direct charge to affect the proposition of law embodied
in said request in what manner or to what extent it was TO
be affected"
In support of this ground appeal shall quote the words
of Pope in his learned opinion in deciding
the former appeal in this case.
What is the object request to charge Is not to obtain
an answer Judge to the This Court holds parties
to cause to just rigid rule in they seek to aege fall
ure in Judge embody in his charge to the jury some feat
ure bearing upon the decision of the issues involved
pf
request charge was resed The Court might
have said sunless request in aog and before argument was
refused for such the Rule of Court and it was in
this complied whe resume the quotation) linen, II
that be So and when they charge from the Judge and he
indicate the his opinion clear cut upon the propo-
of law contained in the request we not bound to en-
hold Judge bound the language of the request
or his charge exactly the proponent of hecharge
would prefer but the Judge respond the request by
cng the proposition if relevant the issues involved sound
unsound."
State o. Mcintosh, II s. E. Rep, $50.
This good 1t right and reasonable Judge Norton
did not comply with it, Our written request to charge handed
sponse This did not ge 50 charge you bu-and then
followed cloudy qualification which was not explained nor de-
fined being ar cu and such would indicae to
the jury his opinion the Judges response was vague unats
factory indefinite and misleading.
Another Charge On The Facts.
We have already his Hono charge the facts
manaughter We call attention in srh ground OF appeal
to another charge the facts The language we except to is
this cit was the business of the defendant to have notified him
he ecease leave else he must make out plea of self
defense notified him." Here the Circuit Judge in
province the and himself decided question of
Irrespective Of the circumstances in which the defendant
found himself when he fired the mortal shot, the Judge decided
for jury that W the business of the defendant to have
notified deceased eave This matter to be decided
exclusively by the jury And they wonld have considered all
the They would have regarded them did Mr.
Associate Justice MCGOWAN in State Mcintosh S. E. Rep AL
when he referred to he circumstances under which Mcintosh
seized his gum which hand and shot the deceased New
bys violent conduct at the breakfast table, breaking dishes with
dipper his threat when demonstrated WITH that he would
break up Mcintosh in the way his following Mcintosh
who quietly left the his approaching Mcintosh While
he had gun his hand his still advancing after the first and
missing had been red In addition to these details which
were testified trial heury would have considered also
the following which elected the second trial from the es
tmony Sheriff Manu. namely, that seeing Newby coming
toward him shot into the doorcng to
him that then told Newly to stop and not further
that stopping Newly sort of ducked his head" and
his right hand to his rghhand beeches pocket and
Mcintosh he meant to shoot him the right to simply
disable him. fired without taking any aim at all and
killed him but that he did not to kill him. Cease
: fol- 649
All these important circumstances ecuay hidden from
the sight tejuy by his Hono charge that lit the bus
ness of have notified the deceased to leave
This we submit was serious
Unjust but Pregnant Suggestions by the Judge.
think whoeduty done in this appeal withoutnv
ing the Courts attention to portion the charge which beay
attitude of the Trial Judge toward the accused and