Chapter 1 Homicide

• Library: SC Crimes: Elements and Defenses (SCBar) (2021 Ed.)

Chapter 1 Homicide

South Carolina is a solid common law jurisdiction in most respects, but especially when it comes to the substantive criminal law. The practitioner will find in this book, and in this chapter especially, a reference to many classic and traditional common law principles. A lot of old cases are cited by our courts of appeal in South Carolina. This is especially so in the case of the law of homicide, self-defense, defense of others, etc. The Common Law of England is the backbone of the South Carolina legal system. Even when discussing modern statutes, our courts look to the common law for guidance. In fact, our legislature long ago mandated such a reference.

All, and every part, of the common law of England, where it is not altered by the Code or inconsistent with the Constitution or laws of this State, is hereby continued in full force and effect in the same manner as before the adoption of this section.

S.C. Code Ann. § 14-1-50.

A. Murder

This chapter will not cover capital murder and sentencing law in South Carolina. The death penalty is a vast topic that requires specialized and separate treatment. It requires an entirely separate book.

South Carolina adopts a classic common law definition of murder/ homicide. In common law jurisdictions like South Carolina "homicide" is understood as murder, voluntary manslaughter, and involuntary manslaughter. There are statutes that provide for other unlawful killings or "homicides."

In South Carolina "murder" is defined as "the killing of any person with malice aforethought, either express or implied." S.C. Code Ann. § 16-3-10. Though defined in the Code, murder remains a common law crime. State v. Wilson, 89 S.E. 301, 301 (S.C. 1916). See also S.C. Code Ann. § 14-1-50, referenced above.

1. Elements

a. Killing (death) of any person
b. With malice
c. [malice] Aforethought
d. [malice may be] Express or Implied
e. Proximate causation

2. Elements Defined

a. Killing (death) of any person

In order to maintain a conviction for homicide the victim must have been a living human being at the time of the crime. There is no crime of murder where the victim has yet to become human or is dead at the time of the crime. See generally McAninch, Fairey, and Coggiola, THE CRIMINAL LAW OF SOUTH CAROLINA, 79 (6^th ed. 2013) (hereafter, McAninch, Fairey, and Coggiola (2013)).

In 1984, the State Supreme Court modified the common law rule that one must be "born alive" in order to be considered a human being. The amended rule recognizes that a "viable but unborn fetus is a [human being] for the purposes of criminal homicide." State v. Horne, 319 S.E.2d 703, 704 (S.C 1984). In addition, S.C. Code Ann. § 16-3-1083, provides for special enhanced punishment for anyone who causes the death of a child who is in utero.

An attack on a corpse will not support a charge of murder. It may be difficult to determine the precise moment of death in situations such as one in which the defendant's act puts the victim in a state by which the victim's life is sustained by artificial measures. The traditional definition marked death by the cessation of blood circulation and heart beat. South Carolina opted for a more comprehensive definition with the passage of the Uniform Determination of Death Act in 1984. S.C. Code Ann. § 44-43-460. The Act states in pertinent part, "an individual who has sustained irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem, is dead." Id. Thus, there is now statutory guidance in situations where blood flow and heart beat have not ceased, even in the absence of brain function. Id.

Determining the time of death can still be difficult due to the existence of multiple tests for brain function. This issue is complicated further by modern medical technology and the willingness of families to consent to organ donations. McAninch, Fairey, and Coggiola, 89-95 (2013). Courts now have to deal with "the issue of proximate cause in cases where organs are transplanted from homicide victims." State v. Matthews, 353 S.E.2d 444, 448 (S.C. 1986).

b. Malice

Malice is an essential component of murder. It is the "wrongful intent to injure another and indicates a wicked or depraved spirit intent on doing wrong." State v. Johnson, 352 S.E.2d 480, 481 (S.C. 1987). The act of killing another must be wrongful. State v. Gaskins, 326 S.E.2d 132, 141 (S.C. 1985) (overruled on other grounds by State v. Torrence, 406 S.E.2d 315 (S.C. 1991)). Once the wrongfulness of the act is established, the presence of malice becomes relevant to distinguish the killing from manslaughter. Id. at 142. One who kills with malice does so with wickedness and without "a just cause or excuse." State v. Fuller, 93 S.E.2d 463, 466 (S.C. 1956); State v. Byrd, 51 S.E. 542 (S.C. 1905); State v. McDaniel, 47 S.E. 384 (s.C. 1904); and State v. McIntosh, 17 S.E. 446 (S.C. 1893).

The presence of malice does not necessarily indicate an actual intent to kill the other person; it may be implied in cases where the defendant acts so "recklessly or wantonly as to manifest depravity of mind and disregard of human life." State v. Mouzon, 99 S.E.2d 672, 675 (S.C. 1957); see also Torrence, supra.

The State Supreme Court has defined malice in slightly different ways over the years, but the essence of the concept is unchanged.

"It is a wicked condition of the heart. It is a wicked purpose. It is a performed purpose to do a wrongful act, without sufficient legal provocation; and in this case it would be an indication to do a wrongful act which resulted in the death of this man, without sufficient legal provocation, or just excuse, or legal excuse." . . ."In its popular sense, the term 'malice' conveys the meaning of hatred, ill-will, or hostility toward another. In its legal sense, however, as it is employed in the description of murder, it does not of necessity import ill-will toward the individual injured, but signifies rather a general malignant recklessness of the lives and safety of others, or a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief; in other words, a malicious killing is where the act is done without legal justification, excuse, or extenuation, and malice has been frequently, substantially so defined as consisting of the intentional doing of a wrongful act toward another without legal justification or excuse."

State v. Heyward, 15 S.E.2d 669, 671 (S.C. 1941), citing State v. Gallman, 60 S.E. 682, 686 (S.C. 1908) and 29 C.J. 1084 (1922). See also Young v. Catoe, 205 F.3d 750 (4th Cir.), cert. denied, 531 U.S. 868 (2000); State v. Reese, 633 S.E.2d 898 (S.C. 2006); and Tate v. State, 351 S.C. 418, 570 S.E.2d 522 (S.C. 2002).

The law on the implication of malice from the use of a deadly weapon has changed substantially. Formerly, "[m]alice [could] be implied from the defendant's use of a deadly weapon" or "any article, instrument, or substance which is likely to produce death or great bodily harm." State v. Campbell, 339 S.E.2d 109, 109 (S.C. 1985). See also 23 S.C. Jur. Homicide § 16. State v. Coleman, 6 S.C. 185, 186-87 (1875) (test for what constituted a deadly weapon). See also State v. Davis, 422 S.E.2d 133 (S.C. 1992), cert. denied, 508 U.S. 915 (1993), overruled on other grounds, Brightman v. State, 520 S.E.2d 314 (S.C. 1999), State v. Bennett, 493 S.E.2d 845 (S.C. 1997), and State v. Scurry, 473 S.E.2d 61 (1996), citing Campbell, supra.

Earlier law on the inference of malice from the use of a deadly weapon was completely altered in State v. Burdette, 832 S.E.2d 575 (S.C. 2020). In Burdette, the State Supreme Court ruled that juries shall no longer be instructed that they may infer malice from the use of a deadly weapon.

We decide this issue solely under the common law; pursuant to our policy-making role under the common law, we hold, regardless of the evidence presented at trial, a trial court shall not instruct the jury that it may infer the existence of malice when the deed was done with a deadly weapon. Of course, whether the deed was done with a deadly weapon or not, the State and the defendant are free to argue the existence or nonexistence of malice based on the evidence in the record. For example, if evidence is introduced that the deed was done with a deadly weapon, the State is free to argue to the jury that it should infer the existence of malice based on that fact and any other facts that would naturally and logically allow a jury to conclude the defendant acted with malice aforethought. Similarly, if the deed was not done with a deadly weapon, a defendant is free to argue the absence of malice based on that fact and any other facts that would naturally and logically allow a jury to conclude the State failed to prove beyond a reasonable doubt that the defendant acted without malice aforethought. "It is axiomatic that some matters appropriate for jury argument are not proper for charging. 'Do jurors need the court's permission to infer something? The answer is, of course no.'" Belcher, 385 S.C. at 612 n.9, 685 S.E.2d at 810 n.9 (quoting Bruce A. Antkowiak, The Art of Malice, 60 RUTGERS L. REV. 435, 476 (2008)). Of course, our ruling does not prohibit a trial court from citing outside the presence of the jury the proposition that malice may be inferred from the use of a deadly weapon. For example, when ruling on a defendant's motion for directed verdict on the ground the State failed to prove the element of malice, a trial court may take into account the fact that the deed was done with a deadly weapon.

Id. at 582-3. The significance of Burdette cannot be underestimated. Burdette ranges widely over many issues relevant to the definition of malice, murder, manslaughter, when it is appropriate to charge lesser offenses, jury instructions generally, and harmless error. It should be carefully considered and closely read by any practitioner before trying a homicide...