STATE V. JACKSON.

[36 SOUTH CAROLINA, 487.]

CONSTITUTIONAL LAW-CHARGE ON FACTS, WHAT IS NOT. — A judge does not charge on the facts, within the meaning of the constitutional inhibition, when he states to the jury only the points of evidence as to which there is no dispute, and leaves wholly to them the only disputed question of fact in the case, without the slightest intimation of his opinion as to that question. MALICE IMPLIED FROM USE OF Deadly WeapoN. — The law implies malice from the use of a deadly weapon, unless there are some circumstances of mitigation or excuse in the case.

ALIBI, PROOF OF, MUST BE CLEAR AND CONVINCING. The evidence relied on to establish proof of an alibi must be sufficiently clear and convincing, to satisfy the jury that the preponderance of the evidence is in favor of the alibi; but it need not be sufficient to remove all reasonable doubt thereof.

INDICTMENT for murder. The facts are stated in the opin

ion.

C. G. Dantzler and J. B. McLaughlin, for the appellant.
Jervey, solicitor, contra.

McIVER, C. J. The defendant was indicted for and convicted of the crime of murder, in taking the life of one Nelson Hook. So far as we can perceive from the evidence set out in the case, there was not a shadow of testimony tending to show any excuse or provocation for firing the fatal shot which resulted in the instant death of the deceased; and the only disputed question of fact was, whether the defendant was the guilty party. Several witnesses testified positively and distinctly that the defendant fired the gun, and there was also testimony tending to show that defendant, looking upon the dead body of his victim, said, with an oath: "I have got one, and I am going to get another"; or as phrased by another witness: "I got that one." The only defense interposed was that of an alibi, and several witnesses testified that the defendant was at a place some two miles distant at the time when Hook was killed.

The jury having rendered a verdict of guilty, defendant appealed upon the grounds set out in the record. The first imputes error to his honor Judge Kershaw in violating the provisions of article 4, section 26, by charging upon the facts in the following particulars: 1. In saying to the jury: "The testimony in this case tends to show that this man Hook was killed on the occasion referred to, and that he was killed by

Toby Jackson, and there are no circumstances of mitigation or excuse." 2. "The evidence does not point to any one else; but that is immaterial." 3. "There is no pretense that there were any circumstances to excuse the killing." 4. "There is no pretense that there was any provocation." 5. "The proof tends to show that the killing was done with a deadly weapon; and under such circumstances the law implies malice, and the killing would be murder, unless there were some circumstances of justification or excuse in the case." The remaining ground, though stated as one of the specifications of the general charge of violating the constitutional provision above referred to, manifestly has no application to such charge, and will therefore be hereinafter separately stated and considered.

In view of the numerous cases in which this court has been called upon to consider the scope and effect of the constitutional provision which it is claimed has been violated in this case, it can scarcely be necessary for us to go over again the same ground, especially where it is only necessary to read the charge of the circuit judge as a connected whole (for which purpose it should be incorporated in the report of the case), to see that the imputation of error is utterly without foundation. There was not a shadow of dispute that the life of the deceased was taken with a deadly weapon, without the slightest pretense of any excuse or provocation, and the soliitary disputed question of fact in the case was as to whether the testimony was sufficient to establish, beyond a reasonable doubt, that the defendant was the party who did the felonious deed. It is impossible to read the charge of his honor without perceiving that this question was left to the jury fully and fairly, without the slightest intimation of the judge's opinion as to that question. Indeed, it is not charged in any of the specifications that the judge expressed, or even intimated, any opinion as to that question. These specifications only point to the statement of undisputed facts, and this, as has been held, is no violation of the constitutional provision: State v. Summers, 19 S. C. 94; State v. Nance, 25 S. C. 173; State v. Davis, 27 S. C. 614; State v. Murrell, 33 S. C. 98.

There was, and could be, no dispute that there was testimony tending to show that the deceased was killed by the defendant; that there were no circumstances of mitigation, excuse, or provocation for the killing; that the killing was done with a deadly weapon, and there was, therefore, no error in stating these undisputed facts in the conneetion in which

they appear in the charge. It is likewise true that there was no evidence pointing to any one else as the author of the guilty deed, though the jury were very properly told, in that connection," that is immaterial"; for the fact that the evidence did not show that any one else had done the deed would not be sufficient to fix guilt upon the defendant. Indeed, as we have said, the only issue of fact raised by the single defense interposed about which there was any dispute was fairly left to the jury, and there was certainly no error on the part of the circuit judge in simply repeating to the jury other facts appearing in the testimony as to which there was no dispute, or in saying to the jury that there was no evidence as to certain points mentioned.

It may be that the fifth specification was intended not only to designate an instance of a violation of the constitutional provision under consideration, but also to raise an independent legal question as to whether the law would imply malice from the use of a deadly weapon, unless there were some circumstances of mitigation or excuse in the case. If so, we can only say that the doctrine announced by the circuit judge has been too long and too well settled to require the citation of any authority to sustain it.

It only remains for us to consider the last ground of appeal, which is in these words: "Because his honor erred in charging the jury that the proof of an alibi must be clear and convincing, and must satisfy the jury, by the preponderance of the evidence, that the accused was not, at the time of the killing, at the place where the killing is said to have occurred.'" The point of this exception seems to rest upon the words "clear and convincing," used by the circuit judge to indicate the nature and decree of the proof necessary to establish the defense of alibi. We find, however, that Mr. Justice Foster, in his Crown Law, 368, said: "It must be admitted that mere alibi evidence lieth under a great and general prejudice, and ought to be heard with uncommon caution; but if it be founded in truth, it is the best negative evidence that can be offered; it is really positive evidence, which, in the nature of things, necessarily implieth a negative, and in many cases it is the only evidence that an innocent man can offer "; and this remark is quoted with approval in Phillips on Evidence, 249, in the second American from the third London edition. So, also, we find that in 1 Am. & Eng. Ency. of Law, 455, it is said: "Where the prosecution rests upon positive and undoubted

proof of the prisoner's guilt, it should not be overcome by less than full, clear, and satisfactory evidence of the alleged alibi."

In view of these authorities, we cannot say that the circuit judge erred in using the terms objected to as characterizing the nature and degree of evidence necessary to establish an alibi, especially when the jury were fold, in that connection, as well as in other portions of the charge, that it was not necessary that the alibi should be proved beyond all reasonable doubt, but that a mere preponderance of evidence would be sufficient. Practically, the instruction amounted to this: that the evidence relied on to establish the alibi must be sufficiently clear and convincing, to satisfy the jury that the preponderance of the evidence was in favor of the alibi; but it need not be sufficient to remove all reasonable doubt of the fact that the defendant was not at the place where the homicide was committed at the time when it was committed. This, it seems to us, was substantially in conformity to the rule as established in this state by the cases cited in appellant's argument, to wit, that while the state, in a criminal case, is bound to prove every essential element of the charge made, beyond a reasonable doubt, the same degree of proof is not required of a defendant who sets up a special defense, which may be proved by a mere preponderance of the evidence; and if, upon the whole testimony, both on the part of the state and the defendant, the jury entertain a reasonable doubt as to any point material to the charge, the defendant is entitled to the benefit of such doubt.

The judgment of this court is, that the judgment of the circuit court be affirmed, and that the case be remanded to the court of general sessions for Orangeburg County, in order that a new day may be assigned for the execution of the sentence heretofore imposed.

MALICE-PRESUMPTION FROM USE OF DEADLY WEAPON. — Malice may be inferred from the use of a deadly weapon causing death, unless rebutted by other testimony: State v. Lavelle, 24 S. C. 120; 27 Am. St. Rep. 799, and note; note to State v. Deschamps, 21 Am. St. Rep. 399.

ALIBI SUFFICIENCY OF EVIDENCE TO ESTABLISH. —A prisoner is not bound to prove an alibi beyond a reasonable doubt: Landis v. State, 70 Ga. 652; 48 Am. Rep. 588. A bare preponderance of evidence is sufficient to prove an alibi: State v. Hardin, 46 Iowa, 623; 26 Am. Rep. 174. If the evidence in support of an alibi is sufficient to raise a reasonable doubt in the mind of the jury, the accused is entitled to an acquittal: Pollard v. State, 53 Miss. 410; 24 Am. Rep. 703. See also extended noto to Sharp v. State, 14 Am. St. Rep. 41.

TRIAL-INSTRUCTIONS — STATING EVIDENCE. The court may state the testimony and declare the law, although it is erroneous to charge in respect to matters of fact: People v. King, 27 Cal. 507; 87 Am. Dec. 95, and note. The court may present the facts in his charge, but must inform the jury that they are the exclusive judges of the facts: Horne v. State, 1 Kan. 42; 81 Am. Dec. 499, and note.

SULLIVAN V. SHELL.

[36 SOUTH CAROLINA, 578]

JUDGMENT-Proper Mode of Proceeding to Vacate,

Where execution

is renewed under proper proceedings after the judgment has been satisfied, if the defendant has any remedy, he must seek it by motion in the original cause, and not by a new and independent action.

RES JUDICATA - PARTY FAILING TO PRESENT DEFENSE ESTOPPED FROM DOING SO AFTERWARDS.- Where a defendant had an opportunity to plead payment of the judgment when summoned to show cause why the execution should not be renewed, but failed to do so, the order of renewal is res judicata.

Relief against Judgment on Ground of Excusable Neglect. — Where a defendant duly served with summons, under no mistake as to the necessity of employing counsel, intrusts the copy summons to a friend, directing him to hand it to an attorney, with instructions to appear and plead payment, but it is not delivered to the attorney until after the time for answering had passed, and judgment by default was taken a year after, there is no such mistake, inadvertence, surprise, or excusable neglect as will entitle him to relief under section 195 of the code.

THE opinion states the case.

Featherstone & Son, for the appellant.

W. H. Irvine, contra.

McIVER, C. J. At the sale of the real estate of one M. A. Sullivan, under a bill to marshal the assets of his estate, the original plaintiff, Hewlett Sullivan, bid off a tract of land, and to secure the payment of the purchase-money executed his bond and mortgage on the same. This bond remaining unpaid, proceedings to foreclose the mortgage were instituted by the clerk of the court, who had succeeded to the possession of the bond and mortgage, and on the 21st of February, 1877, a judgment was rendered against said Hewlett Sullivan for upwards of four thousand dollars, and for the foreclosure of the mortgage and a sale of the mortgaged premises. No sale, however, was ever made under this judgment, Hewlett Sullivan claiming to have made sundry payments thereon, sufficient, as he alleged, to satisfy the same, but no satisfaction