# State v. Gardner > Supreme Court of South Carolina · March 19, 1951 · 219 S.C. 97 URL: https://www.frixlaw.com/law-library/cases/9585397 ## Case - **Full name:** State v. Gardner - **Court:** Supreme Court of South Carolina - **Decided:** March 19, 1951 - **Citations:** 219 S.C. 97; 64 S.E.2d 130; 1951 S.C. LEXIS 27 - **Precedential status:** Published - **Opinion:** Dissent by Stuices - **Judges:** Oxner, Stuices, Tayror, Tide, Fishburne, Stukes, Eishburne - **Cited by:** 43 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9585397 ## Opinion text Stuices, Justice (dissenting). It is with sincere regret that I have-reached the considered conclusion that it is my duty to dissent from the opinion of the majority of the court in this case, and I shall briefly state my reasons. In the first place, the able and conscientious -counsel (this is the characterization of them in the majority opinion and there is no disagreement thereto) who had months to prepare the defense, expressly stated to the court at the trial, in effect, that there was no evidence which warranted a charge upon the law of manslaughter. Nevertheless, I have searched the record in vain for such. Fragmentary expressions from appellant’s testimony are quoted in the majority opinion in effort to raise the inference of physical threat or encounter preceding his use of the butcher knife. I quote his direct evidence thereabout: “Q. All- right, now what took place when you got to the house? A. Well, nothing. I just sat down there and played with the baby. All of them had gone to school except Audrey. *109 Nobody but me.and my wife and the baby, and I was sitting there and playing with the baby about 15 or 20 minutes and she came in there and jumped on me. Said, ‘if you get out here and get you a job and go to work none' of this stuff would take place,’ and she said, ‘Me and my daddy are going to put you in the penitentiary before it is all over with you.’ “Q. Do you remember what happened after that? A. No sir, not a thing. Me and her got into it. That is all I remember.” On cross-examination he said: “Me and her got into an argument and that is everything that I remember. The next thing I knew she was lying on the floor dead.” I think there is no need to add comment on the foregoing. It speaks loudly for itself. Further light is thrown upon the nature of the deed by the report of the postmortem medical examination of the victim, in evidence, as follows: “This is to certify that I examined the dead body of Mrs. Ophelia Gardner at Lawrence Funeral Home, Chester, S. C., on March 6, 1950. There was a deep wound left side running backward below last rib. This wound was about four inches long and cut the kidney and large blood vessels. It was done with sortie sharp cutting instrument as large knife. There was a deep wound in the upper abdomen below the breast bone. It was about three fourth inch long and entered the stomach. There was a deep wound in left side of chest one inch from the center of the breast bone at about the fifth rib. This wound was about three fourth inch long, and entered the lung and blood vessels. This and the wound in the abdomen were caused by some sharp instrument. There were several bruises and scratches on the front of the throat that could have been caused by choking. Examination showed that she was about two months pregnant. Death was due to the above wounds.” • • It is well settled that the law of' manslaughter should not be charged in a trial upon an indictment for murder when there is no evidence or inference of fact to support a verdict *110 of manslaughter. Decisions so holding are cited in the majority opinion. A valuable authority on the general subject is State v. Jones, 133 S. C. 167, 130 S. E. 747 . It cites with approval the old case of State v. Kirkland, 14 Rich. 230 , where the following rule was quoted from Archbold’s Crim. PI. & Pr., 918: “But the court, in charging the jury on a trial for murder, cannot be required to suppose a state of facts of which there is no evidence.” This is the rule generally in other jurisdictions. 26 Am. 544, Homicide, sec. 544. 41 C. J. S., Homicide, § 395, pp. 214, 216, Manslaughter (a) captioned as follows: “An instruction on manslaughter is warranted where, and only where, an issue thereon is properly raised by the evidence.” The statem'ent or confession of the appellant, which was made several hours after the homicide when calm had followed the storm, was as follows: “I left home around 6:30 a. m., March 6, this morning. Then I stopped at Baker’s Service Station for about an hour. When I left there I went to Eureka Mills and stayed there until about 7:45 a. m. I then went down to Mr. Danyels’ home to see him. When I got there'they told me he had gone to town. (Audrey told me). I stayed there until about 8:30 waiting on Mr. Danyels. I went there with intentions of killing Mr. Danyels. Me and my wife got into it then. She started to' accusing me of running with women. I then grabbed her and stabbed her with a knife. I had taken the knife that I used from my room on Hinton St. I made up my mind about three weeks ago that if she did not, withdraw the warrant she had out for me that I would kill her. When I left home this morning I left with the intentions of killing my wife. I have bad lots of trouble with my wife and her people. I could not hold a job for her. Another thing she would not do she would not keep house. I am not sorry for the murder that I committed, and have no apologies to make to anyone.” It is said in the majority opinion that the statement was admissible, with which I fully agree. How then can it be said that it was necessary that instructions be given the jury *111 with respect to the law governing the admissibility in evidence of confessions? It seems to me that any question is answered by the conclusion that the statement was admissible. It was properly admitted without the necessity of instruction to the jury that they should consider it only if they found that it was freely and voluntarily given because all the evidence and inferences showed that it was so given. There is not the slightest evidence, even in appellant’s testimony, of any improper or questionable means to obtain it. The authority of the cited case of State v. Scott, 209 S. C. 61, 38 S. E. (2d) 902 , is therefore entirely inapplicable. In that case there was evidence (from appellant) of duress, beating, etc.; but none here. Certainly the majority opinion is in error when it dis- ' counts appellant’s attempted reliance upon the defense of insanity. Appellant called as his witness the neuropsychiatrist who, with his staff of two other physicians of the State Hospital, had appellant under observation (on defense counsel’s motion) for a period of thirty days during the interval between the homicide and the trial, to determine his sanity. The testimony of this defense witness is quoted from in the opinion of the majority. Appellant’s loss of memory of details of his deeds, to which he testified, appears to have been in patent effort to bolster this, his only defense. One of the exceptions presented in this court, and briefed and argued by counsel, imputes error to the trial court in failing to charge, quoting from the exception, “the law of temporary insanity.” Insanity was, indeed, the only possible defense under the stark facts portrayed by the evidence. I am in full agreement with the able discussion of the law of defense by reason of insanity, which is contained in the majority opinion. There is no doubt in my mind that justice and unbroken precedent require affirmance. I therefore respectfully dissent from the judgment of reversal. Eishburne,- J., concurs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9585397. Public record. Not legal advice.