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Asserting Lack of Intent as a Defense to Murder

Murder is the most serious crime in any society and the one carrying the greatest potential punishment. In South Carolina, murder means the killing of another human being with malice aforethought — that is, with intent to kill or with depraved indifference to human life. Conversely, lack of malice is a defense to the crime.

There are two categories of malice: express and implied. Either one can support a charge of murder. Express malice means the accused intentionally wanted to kill one or more specific individuals. Suppose for example that Harry swindles Bob in a real estate deal. As a result, Bob loses his life savings. Bob gets a gun and waits in the bushes near Harry’s home. When Harry arrives, Bob shoots Harry and kills him. This is express malice that justifies a murder charge.

Implied malice means acting with depraved indifference. This means taking actions for which the natural and probable consequences are endangerment of peoples’ lives. An example is a driver knowingly steering a vehicle into a crowd of people gathered on a sidewalk. Death is virtually certain to result from such conduct, which supports an implication of malice.

It can be difficult for a defendant to show he or she did not have malice aforethought, since intent is not subjective but instead is determined based analysis of the circumstances. Defendants normally do not testify at trial about why they acted as they did.

However, there are other defenses that can be used to negate intent as an element of the crime:

  • Justification — Acting in self-defense or in the defense of others can be a basis for defeating a murder charge. Generally, people have the right to use deadly force against another person who they reasonably believe will kill or do substantial bodily harm to themselves or to innocent parties. Even if the defender acts with intent to kill, justifiable homicide is not murder.
  • Recklessness — Another defense to a murder charge is that the defendant’s intent did not rise to the level of malice. Recklessness means committing a dangerous act without thought or concern about its potential harmful consequences. A finding of recklessness can result in the murder charge being reduced to a lesser crime, such as manslaughter.
  • Legal insanity — This is defense requires proof that the accused was of such diminished mental facility that he or she did not understand the nature of the action or could not distinguish between right and wrong. Legal insanity completely absolves the accused of criminal liability but can result in confinement in a mental institution for an indefinite period of time.

Columbia, South Carolina attorney Jack B. Swerling is among the top criminal defense litigators in the state and is nationally recognized for his work in defending murder suspects. If you have been charged with a homicide or with any other serious crime, feel free to contact us online or call {PHONE} for an initial consultation.

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    Columbia, South Carolina 29201-2850
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Jack Swerling In The News >>

  • Jack Swerling, Derrick Mobley and Alissa Wilson were successful in having a Judge rule after an extensive hearing, that the defendant was immune from prosecution based on the “Stand Your Ground” law in a murder prosecution. The Judgment was handed down on March 29, 2021.
  • Jack Swerling, Gregory Harris and Alissa Wilson obtained a Not Guilty Verdict in Lexington County on March 3, 2022. An Orthopedic Surgeon was charged with Involuntary Manslaughter in the accidental shooting death of a friend.
  • “When Jack is on my docket, I tell my law clerks, ‘You do not want to miss this. You are seeing one of the greatest trial lawyers in the state’s history.'” -South Carolina Circuit Court Judge
  • Jack was selected to Super Lawyers Magazine Top Ten List for 2019. Each year Super Lawyers recognizes the top lawyers in South Carolina via a selection process involving peer evaluations, independent research and professional achievement. The South Carolina lawyers who receive the highest points during this selection process are further recognized in the South Carolina Super Lawyers Top Ten List.
  • USA v. FRANK*: In a child pornography case, Swerling was successful in obtaining a 22 level variance reducing the defendant’s sentence from 8 years to 6 months.
  • STATE v. BORIS: The defendant was found not guilty by reason of insanity in a case where the defendant was involved in a shoot-out with 3 police officers.
  • STATE v. TYGER: Jack Swerling obtains a not guilty verdict in a criminal sexual conduct case in Beaufort County.
  • Pre Trial Dispositions: STATE v. DWAYNE: Mr. Swerling successfully argued for the dismissal of stalking and unlawful use of telephone charges brought against a prominent businessman in Florence County.
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