State v. Toney

The opinion of the court was delivered by SimpsoN, C. J.

In this case the defendants were indicted for malicious trespass'. The act charged was the beating and wounding, against the act of assembly, a cow of Keels, the prosecutor. The presiding judge was requested to charge the jury that it was necessary for the state to prove malice on the part of the defendants against the owner of the property alleged to have been injured. He was further requested to charge that the defendant, Lawrence Toney, was entitled to an acquittal, as, according to the testimony, he was an infant under the age of fourteen years, and there was no evidence rebutting the presumption of law that he was incapable of committing crime. His Honor refused to charge as requested. The defendants were convicted, and Reece Toney and Lawrence Toney have appealed.

The appeal assigns as error in the judge his refusal to charge as requested upon the the two points stated.

The terms used in the act under which these defendants have been indicted and convicted are “ unlawfully ,” “ willfully ” and “ maliciously.” These terms are not synonymous, and were not intended to express the same idea. They have each a different signification and import different degrees of guilt. As was said by the learned judge in the case of State v. Alexander, 14 Rich. 249 , “ an act may be unlawful and so involve legal responsibility, without being either willful or malicious, or it may be both unlawful and willful without being malicious. They constitute an ascending scale in culpability — a legal climax.”

All of these elements are necessary to the crime denounced in *413 the act in which these terms are employed, and they must all be proved upon the trial or the defendant is entitled to an acquittal. But what is the true import of the word malicious as used in the act ? Does it necessarily embrace the idea of hatred towards the owner of the property injured ?

Several authorities have been furnished by the appellant’s counsel, both from England and some of the adjoining states, construing statutes in which these words are used, which sustain this view. But in the face of the case of State v. Doig, 2 Rich. 179 , we cannot declare that to be the law of South Carolina.In that case Wardlaw, J., said : “ Malice is a term of art implying wickedness, and excluding a just cause or excuse. It is implied from an unlawful act, willfully done, until the contrary be proved.” Clearly implying that such act may be willful without being actually malicious. In that case the defendant was indicted for breaking down a portion of the canal on Broad river, owned by the state. There was no charge or proof that this was done out of ill-will towards the state, yet he was convicted and punished.

The accepted legal meaning of the term malice, as found in the best lexicographers, is wickedness, and even in the most startling •of all crimes — that of willful murder — it is not necessary to show personal ill-will towards the victim of the murderer. Where the heart is devoid of social duty and totally bent on mischief, which may be implied from the character of the act, a party may be convicted even of murder without the slightest proof of personal ill-will towards the deceased.

Under the authorities in this state, then, it would not have been good law for the judge to have charged in this case that defendant could not be convicted in the absence of proof of express malice towards the owner of the cow beat and wounded by the defendants.

This brings us to the second question raised by the appeal. Lawrence Toney was between seven and fourteen years of age. He claimed, through his counsel, that as he was under fourteen •the judge should charge “ that there was no evidence rebutting the presumption of law that he was incapable of committing •crime.”

*414 It is true at common law an infant under fourteen is prima facie doli incapax, and before he can be convicted it should appear to the court that he is doli capax, and is able to discern between good and evil. 4 Blachstone 24. But this principle, when enforced most rigidly, would not have demanded of the presiding judge in this case to have charged the jury that there was no proof before them rebutting this presumption, unless it be sound doctrine, as contended by the appellants, that in a question of this kind there must be direct and positive proof as to the fact of capacity independent and outside of the facts and circumstances of the transaction itself.

Out of tenderness to infants — the ease with which they may be misled — their want of foresight and their wayward disposition,, no doubt, the evidence of malice, which is to supply age, should be strong and clear beyond all doubt and contradiction; 4 Bl. Com. 28 ; Archb. Crim. Pr. & PI. (8th ed.) 11; but we find no authority for the position that this evidence must be outside of the facts of the offence itself, and must be directed expressly to the question of capacity. There was no error, then, in the judge submitting this case to the jury upon its own facts, leaving it to them to say whether, under all the circumstances, the offence charged had been committed, both as to the actual beating of the-cow and the capacity of the parties charged.

It is the judgment of this court that the judgment of the Circuit court be affirmed.

McIybr and McGowan, A. J’s, concurred.