South Carolina Criminal Defense Blog

In a murder trial the jury is usually instructed that they can infer malice from the use of a deadly weapon - however, in State v. Belcher, decided October 12th, the South Carolina Supreme Court broke with precedent and held that this is no longer permissible "where evidence is presented that would reduce, mitigate, excuse or justify the homicide."

It has long been the practice for trial courts in South Carolina, as sanctioned by this Court, to charge juries in any murder prosecution that the jury may infer malice from the use of a deadly weapon. We granted Belcher’s petition to argue against this precedent. Having carefully scrutinized the historical antecedents to this permissive inference, we hold today that a jury charge instructing that malice may be inferred from the use of a deadly weapon is no longer good law in South Carolina where evidence is presented that would reduce, mitigate, excuse or justify the homicide. We therefore reverse Belcher’s convictions and remand for a new trial.

This has been a long time coming, and congratulations go to the trial attorney who had the foresight to argue this at the trial level, knowing that the law was not on his side, and preserve the record for appeal, and to the appellate attorney who presented the issue to the Supreme Court, arguing in the face of long-standing precedent.

The prosecution must prove malice aforethought to obtain a murder conviction - malice can mean intent to kill, intent to inflict grievous bodily harm, reckless indifference to the value of human life, or intent to commit a felony. If malice is not proven, it can make the difference between a guilty or not guilty verdict, or a conviction on the lesser included offense of manslaughter.

The problem with instructing the jury that malice can be inferred from the use of a deadly weapon, when there is evidence that would reduce, mitigate, or excuse the homicide, is that it is inconsistent and confusing. Malice includes the absence of justification, excuse and mitigation. The absence of justification, excuse, or mitigation cannot be inferred solely from the use of a deadly weapon.

For example, let's say I shoot and kill a person in self defense. I am in my home, they break in, they see me, they point a shiny pistol at my head, and I draw and shoot. If I am prosecuted for murder, under the law prior to Belcher the jury would be instructed that they can infer malice sufficient to convict me of murder solely from the fact that I used a gun. I killed a person, using a deadly weapon, however that fact alone is not enough for a jury to infer malice.