State v. CrockerAnnotate this Case
272 S.C. 344 (1979)
251 S.E.2d 764
The STATE, Respondent, v. Joseph Randolph CROCKER, Appellant.
Supreme Court of South Carolina.
January 31, 1979.
Palmer Freeman, Jr., Fort Mill, and B.R. Batts, Charlotte, N.C., for appellant.
Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Brian P. Gibbes and Staff Atty. James M. Holly, Columbia, and Sol. William L. Ferguson, York, for respondent.
*345 January 31, 1979
Appellant Crocker stabbed and killed his estranged wife in the presence of several eyewitnesses. The jury found him guilty of murder. We affirm.
Initially, appellant asserts the trial court erred in refusing to charge that the State must prove absence of the heat of passion beyond a reasonable doubt, citing Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L.Ed. (2d) 508 (1975). We disagree.
Mullaney v. Wilbur challenged that Maine rule which required a defendant charged with murder to prove by the fair preponderance of the evidence that he acted in the heat of passion, in order to negate the presumption of malice and reduce the crime to manslaughter. The United States Supreme Court held that placing this burden on the defendant impermissibly relieved the State of its burden to prove beyond a reasonable doubt every factor necessary to constitute the crime charged, concluding that the Due Process Clause required the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on provocation.
The mandate of Mullaney is inapplicable here. The trial court's refusal to give the requested charge did not shift any of the burden of proof to appellant. The judge repeatedly instructed the jury that the State had the burden of proving appellant's guilt beyond a reasonable doubt. (Tr. pages 88-92 and 95). We conclude the refusal to charge the instructions requested by appellant did not come within the prohibition of Mullaney v. Wilbur.
Appellant next challenges the constitutionality of the South Carolina law of implied malice. Malice aforethought may be implied by the jury from the intentional doing of an unlawful act without just cause or excuse. State v. Fields, 264 S.C. 260, 214 S.E. (2d) 320 (1975), *346 cert. denied, 423 U.S. 925, 96 S. Ct. 269, 46 L.Ed. (2d) 252 (1975); State v. Henderson, 74 S.C. 477, 55 S.E. 117 (1906). Malice also may be presumed from the use of a deadly weapon. State v. Levelle, 34 S.C. 120, 13 S.E. 319 (1890); State v. Fuller, 229 S.C. 439, 93 S.E. (2d) 463 (1956); State v. Arnold, 266 S.C. 153, 221 S.E. (2d) 867 (1976).
The trial court charged both precepts of implied malice; appellant asserts this violated the rule of Mullaney v. Wilbur. We do not believe the South Carolina doctrine of implied malice contravenes the due process requirements of Mullaney. The implication arising from the doctrine does not give rise to a conclusive presumption requiring a definite quantum of proof in rebuttal by the defendant. There is no shift of the burden of persuasion to the defendant, as occurred under the Maine rule in Mullaney. The resulting implication only permits rather than requires the jury to infer malice. Accordingly, the doctrine of implied malice in this State is distinguishable from the Maine practice declared unconstitutional in Mullaney v. Wilbur.
Finally, appellant asserts the trial court erred in denying his request to charge that if the jury found appellant to be under the influence of drugs to such an extent that his ability to act with malice aforethought was impaired, a verdict of voluntary manslaughter was warranted. The trial judge properly refused this request.
In State v. Vaughn, 268 S.C. 119, 232 S.E. (2d) 328 (1977), we held that voluntary intoxication is not an excuse for, or a defense to a crime. This rule also extends to the voluntary ingestion of drugs. See State v. Bellue, 260 S.C. 39, 194 S.E. (2d) 193 (1973); State v. Blassingame, 221 S.C. 169, 69 S.E. (2d) 601 (1952); 22 C.J.S. Criminal Law § 72. Therefore, the trial judge was correct in refusing appellant's request to charge.
LEWIS, C.J., and LITTLEJOHN, RHODES and GREGORY, JJ., concur.NOTES
 In State v. Bolton, 266 S.C. 444, 223 S.E.2d 863 (1976) we concluded that requiring a defendant to establish self defense did not violate the due process considerations of Mullaney v. Wilbur.