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State v. Kelsey6/8/1998
ve beyond a reasonable doubt that the defendant Joe Kelsey was not operating under a mistake of fact. If the state can not prove beyond a reasonable doubt that defendant Joe Kelsey knew that the victim was still alive when the pipe bomb was placed in her mouth, then defendant Joe Kelsey is entitled to a verdict of not guilty as to the charge of murder.
A mistake of fact which negates the existence of the mental element of the offense, will preclude conviction. 21 Am. Jur. 2d Criminal Law, Section 141 at 276 (1981); William Shepard McAninch, Criminal Law of South Carolina, 542 (1996). If the particular offense is a general intent crime, the mistake of fact must be reasonable. See State v. Dizon, 390 P.2d 759 (Haw. 1964)(the mistake must not be due to the negligence or carelessness of the defendant). Moreover, a trial court is not required to give an instruction on mistake of fact unless and until the defendant introduces some evidence, direct or circumstantial, of a reasonable basis for having made the mistake. United States v. Norquay, 987 F.2d 475 (8th Cir. 1993).
It is dubious, at best, to suggest that Kelsey's belief in this regard was objectively reasonable. Despite this, there are more fundamental reasons for rejecting Kelsey's argument. First, the trial Judge extensively charged. the jury on the requisite criminal intent for murder. The trial Judge's instruction provided, in pertinent part:
Murder is the killing of any person with malice aforethought, either express or implied. Again, murder is the killing of any person with malice aforethought, either express or implied. Now, in order to convict these defendants on murder . . . the state must prove not only that the defendant killed Melanie Kaye Richey; but they must also prove beyond a reasonable doubt that they did so with malice aforethought. . . . There must be a combination of the previous evil intent and the act producing the fatal result. Proof of malice may be express or direct, such as, where there is evidence of previous threats or evidence of lying in wait. In other words, circumstances which show directly that an intent to kill existed.
The trial court's instructions made clear that the State not only had to prove that Kelsey killed Richey, but that he did so with the requisite intent, i.e., with malice aforethought. Therefore, Kelsey's belief that Richey was dead would be part of the determination of whether Kelsey "intended" to kill Richey.
We also note that Kelsey's requested jury instruction did not accurately state the law in that it failed to provide that Kelsey's mistake of fact must have been reasonable. The proposed charge orily stated that the State must prove beyond a reasonable doubt that Kelsey was not operating under a mistake of fact. Thus, it was not error for the trial court to refuse to give the requested jury charge. See State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984)(a trial court does not err in refusing to give a requested jury instruction where it does not state the correct law).
Conclusion
Based on the foregoing, we AFFIRM the trial court on all issues.
MOORE, WALLER, BURNETT, JJ., and Associate Justice C. Thlbert Goolsby, concur.
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