§ 1-18 Implied Malice - Use of Deadly Weapon - Permissive Inference

• Library: South Carolina Requests to Charge - Criminal (SCBar) (2012 Ed.)

§ 1-18 Implied Malice - Use of Deadly Weapon - Permissive Inference

THIS CHARGE MAY NOT BE PROPER UNDER CERTAIN FACTUAL CIRCUMSTANCES AS ARTICULATED IN STATE V. BELCHER, 385 S.C. 597, 685 S.E. 2d 802 (2009).

The use of a deadly weapon gives rise to a permissive inference of malice. The jury may draw an inference of malice from proof of the use of a deadly weapon if you conclude such is proper after considering all of the facts and circumstances in evidence. You are free to accept or reject the permissive inferences depending on your view of the evidence.

The law says if one intentionally kills [shoots] [stabs] another with a deadly weapon, the implication of malice may arise. If facts are proved beyond a reasonable doubt, sufficient to raise an inference of malice to your satisfaction, this inference would be simply an evidentiary fact to be taken into consideration by you, the jury, along with other evidence in the case, and you may give it such weight as you determine it should receive.

A deadly weapon is any article, instrument, or substance which is likely to cause death or great bodily harm. Whether an instrument or object has been used as a deadly weapon depends on the facts and circumstances of each case.

State v. Belcher, 385 S.C. 597, 685 S.E.2d 802 (2009) "[A] jury charge instructing that malice may be inferred from the use of a deadly weapon is no longer good law in South Carolina where evidence is presented that would reduce, mitigate, excuse or justify the homicide."); id. (holding that, because the evidence presented a jury question on self-defense, it was error to charge the jury that it may infer malice from the use of a deadly weapon); id. (holding that the modern day usage of the following jury charge has strayed from the Supreme Court's original jurisprudence: "Murder is the unlawful killing of another person with malice aforethought ether expressed or inferred... Malice can... be inferred from facts and circumstances that are proven by the State. Malice may be inferred by the use of a deadly weapon. But these inferences are evidentiary only and may be considered by you along with all the other evidence and given such weight, if any, as you determine that they should receive."); id. ("[M]alice includes the absence of justification, excuse and mitigation. When malice is viewed in light of these component parts, it becomes clear that inferring malice from the use of a deadly weapon is indeed only a 'half-truth.' The absence of justification, excuse or mitigation cannot be inferred from the use of a deadly weapon standing alone. Other facts and evidence (or the absence of other facts and evidence) are required for the fulfillment of these component parts." (citing Glenn v. State, 511 A.2d 1110, 1112 (1986)); id. ("Today we return to the rationale underlying Hopkins, Levelle and Jackson and hold that where evidence is presented that would reduce, mitigate, excuse or justify a homicide (or assault and battery with intent to kill) caused by the use of a deadly weapon, juries shall not be charged that malice may be inferred from the use of a deadly weapon. The permissive inference charge concerning the use of a deadly weapon remains a correct statement of the law where the only issue presented to the jury is whether the defendant has committed murder (or assault and battery with intent to kill).") ("The standard implied malice charge remains valid, as does the general permissive inference instruction: 'If facts are proved beyond a reasonable doubt sufficient to raise an inference of malice to your satisfaction, this inference would be simply an evidentiary fact to be taken into consideration by you, the jury, along with other evidence in the case, and you may give it such weight as you determine it should receive.' In addition, we neither restrict the State from arguing to the jury for a finding of malice from the use of a deadly weapon, nor restrict a defendant from arguing the absence of malice or the presence of reasonable doubt in this

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