Opposition — Clarke v. South Carolina

82-1431

TAY 16 1993

IN THE fg Esaki oan

SUPREME COURT OF THE UNITED st-tES——

October Term, 1942

No.

LEROY CLARKE. Peticiones,

versus,

STATE OF SUUTH CAROLINA, Respondent.

BRIEF IN CFPOSITION "O FETITION FOR

@RIT OF CEATIORARI

T. TRAVIS MEDLUCK

Attorney General

BAROILD M. COOMBS. JR.

essistant Attorney Ceanerel

Post Office Fox 11549

Coiumbza, §.C. 29213

ATTORNEYS FOR ALTEPONDENT.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

No,

LEROY CLARKE, Petitioner,

versus,

STATE OF SOUTH CAROLINA, Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

T. TRAVIS MEDLOCK

Attorney General

HAROLD M. COOMBS, JR.

Assistant Attorney General

Post Office Box 11549

Columbia, S.C. 29211

ATTORNEYS FOR RESPONDENT.

QUESTIONS PRESENTED

I.

Did the trial court's instruction

to the jury on _ reasonable doubt

impermissibly shift the burden of proof

to Petitioner to establish a doubt for

which a juror could articulate a reason

before acquitting him?

It.

Did the trial court err by defining

reasonable doubt as a substantial doubt

for which a reason must be given?

Further, did the trial court err by

refusing Petitioner's requested

instruction number 11 on _ reasonable

doubt? Did the trial court's

instruction deny Petitioner due process

of law by reducing the State's burden to

prove each element of the crime beyond a

reasonable doubt?

ate

III.

Did the trial judge improperly

define criminal intent as an element of

murder?

IV.

Did the trial court err by refusing

to give the jury Petitioner's requested

charge number 4 which distinguished

between the terms "not guilty" and

"innocent"?

athe

Cases Involved -------------------- iv

Opinion Below --------------------- l

Jurisdiction ---------------------- 1

Question Presented I and II ------- 2

Argument I and II ----------------- 3

Question Presented III ------------ 10

Argument III ---------------------- 10

Question Presented IV ------------- 15

Argument IV ----------------------- 15

Conclusion ------------------------ 20

Appendix -------------------------- 21

-ili-

jn es

CASES INVOLVED

Page

In the matter of Winship,

397 U.S. 350, 90 S.ct. 1068,

25 L.Ed.2d 368 (1970) ---------- 6

State v. Butler, 277 S.C. 452,

290 S.B.20 L (1982) ------------ 6

State v. Cater, 241 S.C. 262,

127 S.E.2d 822 (1962) ---------- 8,

>

17

State v. Daniels, 231 S.C. 176,

97 S.E.2d 902 (1957) ----------- 6

State v. DuRant, 87 S.C. 532,

“ (1911) ------------- 6

State v. Fields, 264 S.C. 260,

S.E. 0 (1975) ---------- 8,

hy a

17

State v. Griffin, 277 S.C. 193,

“355 S.E.2d 631 (1981) ---------- 14

State v. Haney, 257 S.C. 89,

184 S.E.2d Thy (1971) ---------- 13

State v. Lawrence, 226 S.C. 423,

223 5.6.20 090 (1976) ---------- 8,

State v. McDowell, 272 S.C. 203,

249 S.E.2d 916 (1978) eccceccece 14

-iv-

State v. Richardson, et al.,

Se. aa ae

fs .

B22 (1982) cenccccsnocscssnsseen

State v. Simmons, 269 S.C. 649,

239 S.b.2d0 650 (1977) ----------

State v. Thompson, S.C. __,

S9P SE-2d S81 (1982) .-2-see-

State v. Tuckness, 257 S.C. 295,

185 S.E.2d 607

(1971) ----------

State v. Williams, 237 S.C. 252,

SoBe 58 (1960) ----------

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

No.

LEROY CLARKE, Petitioner,

versus,

STATE OF SOUTH CAROLINA, Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

OPINION BELOW

The opinion of the South Carolina

Supreme Court is reported in Memorandum

Opinion No. 82-M0-371, filed December

28, 1982, as reproduced in Petitioner's

Appendix A at page l.

JURISDICTION

Respondent does not question the

Court's jurisdiction in this proceeding.

whe

QUESTION PRESENTED

I.

Did the trial court's instruction

to the jury on reasonable doubt

impermissibly shift the burden of proof

to Petitioner to establish a doubt for

which a juror could articulate a reason

before acquitting him?

Il.

Did the trial court err by defining

reasonable doubt as a substantial doubt

for which a reason must be_ given?

Further, did the trial court err by

refusing Petitioner's requested

instruction number 11 on _ reasonable

doubt? Did the trial court's

instruction deny Petitioner due process

of law by reducing the State's burden to

prove each element of the crime beyond a

reasonable doubt?

ARGUMENT

I. and II.

The trial judge's instruction to

the jury on reasonable doubt did not

impermissibly shift the burden of proof

to Petitioner to establish a doubt for

which a juror could articulate a reason

before acquitting Petitioner. The trial

judge did not err by defining

"reasonable doubt" as a_ substantial

doubt for which a reason must be given;

further the trial judge did not err by

refusing Petitioner's requested

instruction number 11 on_ reasonable

doubt. The trial judge's jury

instructions on reasonable doubt did not

in any manner deny Petitioner due

process of law by reducing the State's

burden to prove each element of the

crime beyond a reasonable doubt.

[Petitioner's Arguments I and II].

aie

Petitioner contends the trial judge

erred in his charge on reasonable doubt,

because his phraseology impermissibly

shifted the burden of proof to Appellant

to establish a reasonable doubt as to

his guilt, and incorrectly charged the

jury that they had to articulate a

reason for that doubt. Petitioner

contends the trial judge's use of the

word "one" in the following context may

have allowed the jury to infer that

Appellant had to establish reasonable

doubt :

Now by the term reasonable

doubt we mean a doubt for

which one can give a reason.

. We speak of a reasonable

doubt, one arising out of

the evidence or the lack of

evidence for which one

honestly seeking to find

the truth can give a reason.

If upon the whole case you

have a reasonable doubt,

the defendant is entitled

to that doubt and the

benefit of that doubt;

and you must find him

sie

not guilty and acquit

him.

> 378 th ogee

added).

In the context of the trial judge's

extensive charge on the presumption of

innocence, the State's burden of proof

and reasonable doubt, the above argument

has no- merit. The trial judge

continually stressed that proof of each

element of murder must be beyond a

reasonable doubt. See Tr. p. 269, line

13 - p. 271, line 21; p. 274, lines 3-4;

p. 275, lines 3-14,

Petitioner then contends the trial

judge erroneously equated "substantial

doubt" with "reasonable doubt," thereby

reducing the State's burden to establish

every element of the crime beyond a

reasonable doubt. Respondent disagrees.

The South Carolina Supreme Court has

recently upheld the validity of a

ae

virtually identical charge as fully

complying with the dictates of In _the

matter of Winship, 397 U.S. 358, 90

S.Ct. 1068, 25 L.Ed.2d 368 (1970); State

v. Butler, 277 S.C. 452, 290 S.E.2d 1

(1982). Consequently, the charge in

question is in accord with the prior

case law of this State.

"The purpose of a charge is to

enlighten the jury." State v. DuRant, 87

§.C. 532, 70 S.E. 306 (1911). An

assignment of error which is predicated

upon isolated excerpts which standing

alone might be misleading fails if the

instructions as a whole are free from

error. State v. Daniels, 231 S.C. 176,

97 $.E.2d 902 (1957). Respondent

maintains the trial judge accurately

instructed the jury concerning

reasonable doubt and Petitioner's

contention that he was prejudiced by

that charge is without merit.

a6e

Petitioner further contends’ the

trial judge erred by refusing his

requested charge number 11, defining

reasonable doubt. See Petitioner's

Appendix B(6) at p. ll.

Respondent maintains that because

Petitioner's exception V violated the

South Carolina Supreme Court's Rule 4,

§6 in several respects, that issue was

not properly before the South Carolina

Supreme Court and thus is not properly

before this Court. The exception

alleged: "That the trial judge erred in

refusing the Appellant's requested

charges numbered 2, 4, 5, 6, 7, ll.

Appellant was entitled to have such

requests charged to the jury because

Appellant's requests were proper

instructions under the law, and were

necessary to properly and fully instruct

the jury." (Tr. p. 323).

ava

As the South Carolina Supreme Court

has recently stated, such an exception

“requires the Court to '‘'grope in the

dark' in an effort to ascertain the

precise points in issue." State v.

Richardson, et al., SsG... 4 295

S.E.2d 422 (1982), citing State v.

Lawrence, 226 S.C. 423, 223 S.E.2d 856

(1976); State v. Fields, 264 S.C. 260,

214 S.E.2d 320 (1975).

The South Carolina Supreme Court

has specifically stated that a mere

reference to a request to charge will

not be considered as it violates Rule 4,

§6 in at least three particulars. State

wv, Cater, 261 §.C. 262, 127 8.E.2d 822

(1962).

Respondent further contends that

even if the South Carolina Supreme Court

determined not to dismiss the exception

as defective, the trial judge did not

» a

a+ pe

err in refusing Appellant's request to

charge number 11 because his charge

encompassed the proposition of law

requested by Appellant.

QUESTION PRESENTED

rit.

Did the trial judge improperly

define criminal intent as an element of

murder?

ARGUMENT

Tit.

The trial judge's instructions

properly defined criminal intent as an

element of murder. {Petitioner's

Argument III].

Petitioner contends the trial judge

erred in refusing to instruct the jury

on his requested charge number 5 as a

proper definition of criminal intent.

See Petition, p. 31, fn. 1. Respondent

disagrees.

Initially, Respondent maintains

that because Appellant's exception V

violated South Carolina Supreme Court

Rule 4, §6 in several respects, that

x

issue was not properly before the South

Carolina Supreme Court and thus is not

properly before this Court. The

exception alleged: "That the trial judge

erred in refusing the Appellant's

requested charges number 2, 4, 5, 6, 7,

11. Appellant was entitled to have such

requests charged to the jury because

Appellant's requests were proper

instructions under the law, and were

necessary to properly and fully instruct

the jury." (Tr. p. 323.)

As the South Carolina Supreme Court

has recently stated, such an exception

"requires the Court to '‘'grope in the

dark' in an effort to ascertain the

precise points in issue." State v.

Richardson, et al., $.c. =, 29%

S.E.2d 422 (1982), citing State v.

Lawrence, 226 S.C. 423, 223 S.E.2d 856

(1976); State v. Fields, 264 S.C. 260,

214 S.E.2d 320 (1975).

elie

The South Carolina Supreme Court

has specifically stated that a mere

reference to a request to charge will

not be considered on appeal as it

violates Rule 4, §6 in at least three

particulars. State v. Cater, 241 S.C.

262, 127 S.E.2d 822 (1962).

Respondent further contends that

even if the South Carolina Supreme Court

determined not to dismiss Appellant's

exception as defective, the trial judge

did not err in refusing Appellant's

request to charge number 5, because his

charge encompassed that proposition of

law. Respondent maintains that «the

trial judge's general definition of

murder (Tr. p. 273, line 22 - p. 274,

line 4), when read in context of the

entire charge (Tr. p. 268, line 24 - p.

279, line 10; p. 288, line 16 - p. 289,

line 15), sufficiently informed the jury

14.

of the correct law regarding intent.

The South Carolina Supreme Court has

stated that in reviewing a jury charge

for error the charge will be considered

as a whole in light of the evidence

presented at trial. State v. Thompson,

S.C. __, 292 S.E.2d 581 (1982).

The case law reveals that the

question of felonious intent is an issue

of fact for the jury. State v. Williams,

237 S.C. 252, 116 S.E.2d 858 (1960).

Absent an admission by the defendant,

proof of intent necessarily rests on

inferences from the defendant's conduct,

State v. Haney, 257 S.C. 89, 184 S.E.2d

344 (1971), and such conduct should be

considered in light of the given

circumstances, State v. Tuckness, 257

S.C. 295, 185 S.E.2d 607 (1971).

Respondent maintains that the trial

judge's charge adequately covered the

«13

substance of defendant's requested

charge; thus the requested charge was

properly refused. See State v. Griffin,

277 §.C. 193, 285 S.E.2d 631 (1981);

State v. McDowell, 272 S.C. 203, 249

S.E.2d 916 (1978). Further, the South

Carolina Supreme Court has held that the

trial judge has no duty to grant a

requested charge which does not

correctly state the law or which may

confuse or mislead the jury. Respondent

asserts that Petitioner's requested

instruction on intent could have

confused or misled the jury, and that

the trial judge properly refused to so

charge. State v. Simmons, 269 S.C. 649,

239 S.E.2d 656 (1977).

sibs

QUESTION PRESENTED

IV.

Did the trial court err by refusing

to give the jury Petitioner's requested

charge number 4 which distinguished

between the terms not guilty" and

"innocent"?

ARGUMENT

IV.

The trial court did not err by

refusing to charge Petitioner's request

to charge number 4. [Petitioner's

Argument IV].

Petitioner contends the trial judge

erred in refusing to charge the jury his

request to charge number 4, found at

page 35 of the Petition. According to

Petitioner, the trial judge's charge did

not properly inform the jury of the

distinction between the two terms.

Respondent disagrees.

“Se

Initially, Respondent maintains

that because Appellant's exception V

violated South Carolina Supreme Court

Rule 4, §6 in several respects, that

issue was not properly before the South

Carolina Supreme Court and thus is not

properly before this Court. The

exception alleged: "That the trial judge

erred in refusing the Appellant's

requested charges numbered 2, 4, 5, 6,

7, 11. Appellant was entitled to have

such requests charged to the jury

because Appellant's requests were proper

instructions under the law and were

necessary to properly and fully instruct

the jury." (Tr. p. 323).

As the South Carolina Supreme

Court has recently stated, such an

exception "requires the Court to ‘'grope

in the dark' in an effort to ascertain

the precise points in issue." State v.

-16-

Richardson, et al., S.C. __, 294

S.E.2d 422 (1982), citing State v.

Lawrence, 226 S.C. 423, 223 S.E.2d 856

(1976); State v. Fields, 264 S.C. 260,

214 S.E.2d 320 (1975).

The South Carolina Supreme Court

has stated specifically that a mere

reference to a request to charge will

not be considered, as it violates Rule

4, §6 in at least three particulars.

State v. Cater, 241 S.C. 262, 127 S.E.2d

822 (1962).

Respondent further contends that

even if the South Carolina Supreme Court

determined not to dismiss this exception

as defective, the trial judge did not

err in refusing Petitioner's request to

charge number 4 because his’ charge

encompassed that proposition of law

requested by Petitioner.

a)

Petitioner argues that the trial

judge's failure to charge his request to

charge number 4 (Tr. p. 304) failed to

inform the jury of the legal difference

between the two terms. Petitioner

contends the jury could have believed he

committed the crime, but not that he

committed it beyond a reasonable doubt.

Respondent maintains the requested

charge is misleading because it might

confuse the jury as to the burden of

proof. A trial judge has no duty to

give an instruction which is either a

misstatement of the law or which may

confuse and mislead the jury. State v.

Simmons, 269 S.C. 649, 239 S.E.2d 656

(1977). Respondent further contends the

last sentence of charge number 4 ["the

charges were simply not proven by the

State."] would be an impermissible

comment on the facts. Further,

oie

Respondent maintains the trial judge's

charge regarding the two possible

verdicts (Tr. p. 277, line 16 - p. 278,

line 3), when read in conjunction with

his extensive charge regarding the

presumption of innocence and the State's

burden of proof (Tr. p. 269, line 13 -

p. 271, line 21), completely and clearly

delineated the jury's role in imposing a

verdict.

This Court has held that’ any

alleged error in the judge's instruction

must be read in context of the entire

charge. State v. Thompson, __ S.C. __,

292 S.E.2d 581 (1982). When viewed in

context of the entire charge in this

case, Respondent maintains that there

was no error and that the trial judge

properly refused requested charge number

4,

o19e

The Respondent thus submits that

the holding of the South Carolina

Supreme Court in this case did not deny

Petitioner any of his constitutional

rights, and that the Petitioner is not

entitled to a Writ of Certiorari.

CONCLUSION

For the foregoing reasons,

Respondent submits that Petitioner's

Petition for a Writ of Certiorari be

denied.

Respectfully submitted,

T. TRAVIS MEDLOCK

Attorney General

HAROLD M. COOMBS, JR.

Assistant Attorney General

ATTORNEYS FOR RESPONDENT.

=20-

APPENDIX

iain

(Tr. p. 268, lines 24-25)

THE COURT: Ladies and gentlemen of

the jury, by this bill of indictment,

the paper which I hold in

(Tr. p. 269, lines 1-25)

my hand, the State of South Carolina

charges the defendant at the Bar, Leroy

C. Clarke, with the crime of murder.

You will have this with you during your

deliberations. You may read it; but you

may not consider that it has any weight,

because this is just an accusation that

the State makes against Mr. Clarke.

This is not evidence. This is not

proof. You may not give it = any

consideration other than to find out

what the charges are.

Under the law of South Carolina,

the defendant is charged with the

-22-

offense known as_ murder. To this

indictment, the defendant has pled not

guilty. The plea of not guilty places

the burden upon the State of South

Carolina to prove his guilt beyond a

reasonable doubt to the satisfaction of

each and every one of you. Such burden

of proof is never shifted to the

defendant. It remains with the State of

South Carolina throughout the matter.

A person charged with a criminal

offense in this State, and in all the

states our great country, are presumed

to be innocent of the charges. They are

never required to prove their innocence

because, as you ladies and gentlemen

know, that's not always possible. A

presumption of innocence attaches to the

defendant at the time of his first

-23-

i

(Tr. p. 270, lines 1-25)

appearance at the time of his first

arraignment, and it remains with him

throughout his trial and throughout your

deliberations. It can only be removed

by evidence which convinces you of his

guilt beyond a reasonable doubt.

Our Supreme Court has said that the

presumption of innocence is like a cloak

or robe of rightecusness placed about

the shoulders of the defendant; and it

assigns him to that class, the innocent,

until that presumptive robe of

righteousness has been stripped from his

body by evidence satisfying you of his

guilt beyond a reasonable doubt.

I say to you, ladies and gentlemen,

that's not a mere legal phrase. It's

not just legal theory, but it is a

substantial right to which this

defendant and every defendant is

-24-

entitled. The presumption of innocence

stays with him until you ladies and

gentlemen are satisfied that’ the

evidence has convinced you beyond a

reasonable doubt of his guilt.

Now by the term reasonable doubt we

mean a doubt for which one can give a

reason. Not a whimsical doubt. Not a

fanciful doubt. Not an imaginary doubt.

Not a weak doubt. Not a slight doubt.

It's none of those things. As you and I

know, we might doubt anything. We might

well doubt where this

(Tr. p. 271, lines 1-25)

electricity comes from because, if

you're like me, you're not of a

scientific mind; but we know that

electricity comes from generators that

may be far off or they may be near. And

so if we doubted that this was generated

by the turning of a motor, we would know

-25-

that that was not a reasonable doubt.

We speak of a reasonable doubt as a

substantial doubt, one arising out of

the evidence or the lack of evidence for

which one honestly seeking to find the

truth can give a reason. If upon the

whole case you have a reasonable doubt,

the defendant is entitled to that doubt,

or the benefit of that doubt; and you

must find him not guilty and acquit him.

Should you have a reasonable doubt

as to the defense which he has put up,

again you must give him the benefit of

that doubt and acquit him. If, on the

other hand, you feel that the State has

established the guilt of the defendant

beyond a reasonable doubt, then it would

equally be your duty to find him, upon

your sworn oath, guilty.

Under the Constitution of our

State, you ladies and gentlemen are the

-26-

————

only judges of the facts of this case.

It was my duty, during the trial, to

pass upon the admissibility of the

evidence or

(Tr. p. 272, lines 1-25)

testimony; but the weight of that

testimony or evidence, the probative

value of it, is for you and you alone.

It is your duty to weigh the

evidence, to consider the evidence, to

determine the force and effect of that

evidence, just as you heard it from the

witness stand. I'm not allowed to

charge you, either directly or

indirectly, on any matter of fact. That

simply is not my job. It is yours.

If during this trial, because of

some ruling I've made, some statement

I've made, something I've done or failed

to do, you feel that you recognize my

feeling about the evidence, you would

ait.

disregard that because, as I have said

to you, ladies and gentlemen, that

simply isn't my job.

As the judges of the facts, you

ladies and gentlemen must pass upon the

credibility or the believability of the

several witnesses who have testified

from that witness stand. In doing this

you should take into consideration any

interest that a witness has in the

outcome of the case, any bias or

prejudice that a witness may have, the

opportunity of the witness for

observation and knowledge, the demeanor

of the witness on the witness stand, and

anything else that might affect your

feelings in

(Tr. p. 273, lines 1-25)

regard to the credibility of the

witnesses.

It is your job, ladies and

-28-

gentlemen, to find the truth, whether it

comes from the witnesses for the State

or witnesses for the defendant, or both.

I tell you, ladies and gentlemen, that

you may believe one witness against

several. You may believe’ several

against one. You may believe everything

a witness says. You may believe nothing

a witness says. On the other hand, you

may believe a part of what a witness

says and disbelieve a part of what that

same witness says. Now you may not do

that arbitrarily, but only if there is a

reason in the evidence for your. so

doing.

Having determined what the true

facts are, ladies and gentlemen, it then

becomes your duty to take the law as I

now charge it to you and apply it to

those facts and thereby return a true

verdict, a just verdict, a verdict fair

to the defendant and fair to the State

-29-

of South Carolina.

I charge you, ladies and gentlemen,

that this bill of indictment charges the

crime of murder. Murder is defined as

the killing, or the felonious killing,

of any person, with malice aforethought,

either express or implied. In order to

convict one of murder, the State must

not only prove the killing

(Tr. p. 274, lines 1-25)

of the deceased by the defendant, but it

must also prove criminal intent and that

it was done with malice aforethought.

Such proof, of course, must be beyond a

reasonable doubt.

You ask what is malice? Malice is

defined in the law of homicide as a term

of art; that is, a technical term

importing wickedness and excluding just

cause or excuse. It is something which

springs from wickedness, from depravity,

-30-

from a heart devoid of social duty and

fatally bent upon mischief. The words

express or implied do not mean different

kinds of malice, but merely the manner

in which the only known--the only kind

known to the law may be shown to exist.

That is, either expressed or implied.

Malice may be expressed as where

previous threats or vengeance or lying

in wait, or other circumstances, show

directly that an intent to kill was

really entertained. Malice may also be

implied as where, though no express

intent to kill is proven by express or

direct evidence, it is indirectly but

necessarily inferred from the facts and

the circumstances of the case which are

proven.

Malice may be implied or presumed

from the willful, deliberate and

a3ie

intentional doing of an unlawful act,

without just cause or excuse. In its

(Tr. p. 275, lines 1-25)

general signification, malice means the

doing of a wrongful act intentionally,

without justification or excuse. Malice

may be inferred, as I say, or presumed,

from the use of a deadly weapon; but

that presumption, ladies and gentlemen,

like all presumptions, is rebuttable and

may be rebutted by evidence that raises

a reasonable doubt in your mind as to

the truth of the presumed fact.

The defendant does not have the

burden of disproving the presumed fact,

either by a preponderance of _ the

evidence nor beyond a reasonable doubt;

but it is sufficient, if the evidence

raises a reasonable doubt in your mind

of the existence of the presumed fact.

The defendant has entered, in this

aS@e

case, what we lawyers call the defense

of self defense; and I tell you that

self defense is a good defense. Based

upon che prior decisions of our Court,

it must appear that the defendant was

without fault in bringing on the

difficulty, that he actually believed he

was in imminent danger of losing his

life or of sustaining serious bodily

injury.

If his defense is based on his

actual belief of imminent danger that a

reasonable prudent person of ordinary

firmness and courage would have

entertained

(Tr. p. 276, lines 1-25)

the same belief, or if his defense is

based on his being in actual and

imminent danger that the circumstances

were such as would warrant a man of

ordinary prudence, firmness and courage

a$3e

—

to strike the fatal blow in order to

save himself from serious bodily harm or

of losing his own life.

I tell you that it is one's duty to

avoid taking a human life where it is

possible to prevent it, even to the

extent of retreating from his adversary,

unless by doing so the danger of being

killed or suffering serious bodily harm

is increased or it is reasonably

apparent that such danger would be

increased. And further, that he had no

other probable means of avoiding the

danger of losing his own life or

sustaining serious bodily injury than to

act as he did in the particular

instance.

Ladies and gentlemen, I sometimes

say I'm not concerned with what your

verdict will be because that's your

responsibility, not mine. Of course,

«3he

I'm concerned with what your verdict be.

I'm concerned that your verdict speak

the truth because that is what you're

sworn to do, ladies and gentlemen, a

true verdict render, according to the

law and evidence, so help you God.

I'm sure, ladies and gentlemen,

that during

(Tr. p. 277, lines 1-25)

these few days that we've been together

you've heard some of these people in

this courtroom, in addressing me, say

"Your Honor". They're not speaking to

Clyde Eltzroth when they say that,

ladies and gentlemen. They speak to the

position I hold because, as _ your

presiding judge, I hold in my hands the

honor of Berkeley County and of South

Carolina. So long as I preside with

fairness, that honor will not be soiled.

God help me should I ever preside

otherwise.

«$§-<

ee eee

ne ae gee

When you come here as judges of the

facts and take the solemn oath which you

have taken, you mus¢c share with me this

awesome responsibility. I tell you,

ladies and gentlemen, that you have no

friends to reward. You have no enemies

to punish. Your only responsibility is

to speak the truth.

There can be only one of two

verdicts in this case. I give these to

you now, and pay no attention, ladies

and gentlemen, to the order in which I

give them to you because I could reverse

them just as well. I have to give you

one before I can give you the other. If

I could give you both of them at one

time, of course, I would do that; but I

cannot. You may either find the

defendant guilty or not guilty,

according to the way that you view the

evidence.

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Each and every one of you must

agree on the

(Tr. p. 278, lines 1-25)

verdict before it may be written. When

you have all agreed upon a verdict then,

Mr. Foreman, you will write the verdict

for the jury. You will note on the back

of the indictment, printed in bold black

type, is the word verdict. Under it are

several lines. Write the verdict of the

jury on one of those lines, and then

you'll see the word foreman down below.

Sign your name above that line.

I may have made some error in my

charge to you, ladies and gentlemen; and

I may have left out some very important

rules of law. I'll take that up with

these fine gentlemen after you have gone

out of the room; and if they call to my

mind something that I should charge you

further or some correction I should

make, I will ask you to come back; and I

«$7

will at that time try to correct or

extend my remarks.

Take with you the exhibits which

have been entered. Take the indictment

with you. You may not consider this as

evidence, but the exhibits are evidence.

Give me two or three minutes before you

start your deliberations so that I can

discuss these matters with the lawyers.

If you do not hear from me in the

next three or four minutes, then start

your deliberations.

(Tr. p. 279, lines 1-10)

When you have all agreed, Mr. Foreman

write the verdict, sign your name, knock

upon the door. Your bailiff will hear

you. You will come back, and your

verdict will be published, and that will

complete your work in regard to this

case.

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a.“ .

You're not, of course, concerned

with punishment in this case, ladies and

gentlemen. That's not your

responsibility. The only question

you're concerned with is whether your

verdict shall be guilty or not guilty.

You may retire.

(Tr. p. 288, lines 16-25)

THE COURT: Ladies and gentlemen, I

charged you that the use of a deadly

weapon might cause a presumption of

malice. I would say to you, ladies and

gentlemen, if the facts are proved

sufficient to raise a presumption of

malice to your satisfaction, and it is

always for you, the jury, to determine

from all of the evidence in the case

whether or not malice has been proved

beyond a reasonable doubt.

In other words, ladies and

gentlemen, I tell you that, in regards

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to implied or presumed malice,

(Tr. p. 289, lines 1-15)

that is evidentiary. It does not

require you to infer malice, but it

permits it.

The presumption or inference of

malice from the use of a deadly weapon

is, therefore, simply an evidentiary

fact to be taken into consideration by

you ladies and gentlemen of the jury,

along with all of the other evidence in

the case, and to be given such weight as

you ladies and gentlemen determine it

should receive.

The inference of malice may be

drawn from the use of a deadly weapon if

you conclude such is proper, after

considering all of the facts and

circumstances of the matter. Thank you

so much, ladies and gentlemen. You may

return to your room, and you gentlemen

may return to the other room.

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(Tr. p. 304)

CHARGES

DEFENDANT'S REQUEST TO CHARGE NO. 2

The Court instructs the jury that

the law presumes every person charged

with crime to be innocent until the

State has established his guilt by

evidence so strong, so clear, and so

conclusive, that there is left in the

minds of the jury no reasonable doubt as

to his guilt. This presumption is an

abiding presumption, and goes with the

accused through the entire case and

applies at every stage thereof until

repelled by proof. And in this

connection the jury is instructed that

it is never sufficient that the accused,

upon speculative theory or conjecture,

may be guilty; or that by the

preponderance of the testimony his guilt

is more probable than his innocence;

hte

for until his guilt has been proved

beyond all reasonable doubt in the

precise and narrow terms as charged in

the indictment, the presumption of

innocence still applies, and they must

acquit him. (1 Lee 439, 132 Va. 665).

DEFENDANT'S REQUEST TO CHARGE NO.

The term "not guilty” is synonomous

with "innocence." In our system of

criminal justice, the term "not guilty”

means that the State did not prove the

defendant guilty beyond a _ reasonable

doubt of each element of an offense;

"not guilty" does not mean that you must

find the defendant "innocent" of the

crime with which he was charged. The

charges were simply not proven by the

State.

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(Tr. p. 323, lines 7-12)

V.

That the trial judge erred in

refusing the Appellant's requested

charges numbered 2, 4, 5, 6, 7, and ll.

Appellant was entitled to have _ such

requests charged to jury because

Appellant's requests were proper

instructions on the law, and were

necessary to properly and fully instruct

the jury.

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