The opinion of the Court was delivered by
The following statement appears in the record:
“The defendant, Will Edwards, a colored ex-soldier, was indicted*at the January, 1922, term of the Court of General Sessions, on a charge of highway robbery; it being alleged that he, on the night of December 4, 1921, between 6 and 7 o’clock had robbed Mrs. T. E. Jones, a white lady, residing on the corner of Butler Avenue and Buncombe Street, one of the most prominent thoroughfares in the city of Greenville. The defendant was tried before Judge Frank B. Gary and a jury, on January 9 and 10, 1922. A most peculiar incident occurred during the trial. It developed in the testimony that Mrs. Jones had described the negro as being a brown skin negro. The defendant was a coal black negro, and the question of his color was a sharp issue during the trial. After the jury had deliberated on the case for a considerable time, they returned to the Courtroom and asked if there was any objection to having the defendant’s face washed; it having been contended during argument by the Solicitor that his face could have been stained. Elot water and washing powder was produced, and in the presence of the Court and jury, in open Court, the defendant vigorously scrubbed his face for several minutes without the slightest variation in his color. The jury returned to their room, and thereafter brought out a verdict of guilty, and the defendant was sentenced to 15 years imprisonment.”
The defendant appealed upon exceptions which will be reported. They will be considered in regular order.
*120First exception: The case of Chapman v. Cooley, 12 Rich., 654, and Dennis v. Street Ry., 93 S. C., 296; 76 S. E., 711, show that this exception cannot be sustained. The appellant’s attorneys rely upon the case of Woods v. Thrower, 116 S. C., 165; 107 S. E., 250; 15 A. L. R., 1062, but the facts in that case are materially different from those in the present case, inasmuch as the witness Joshua Moore was a resident of Greenville County in which the defendant was tried. This exception is overruled.
Second exception: Applying the request to the case then under consideration, it embodied a charge on the facts, and was properly refused. In State v. Coleman, 20 S. C., 441, his Honor, the presiding Judge, was requested to charge the jury “that, if they believed that the prisoner had no motive for killing the deceased, as shown by words or deeds previous or subsequent to the act, then they must acquit him on the ground of want of criminal intent,” and instead charged, “that the intent must exist and be shown to exist, but the motive may not be discovered; the absence of a motive revealed is a circumstance to be duly considered in weighing the question of guilt.” Held that in this there was no error. The words which we have italicized show that absence of motive is a mere circumstance to be considered by the jury. This exception is overruled.
Third exception: This exception is overruled for the reason that inferences from the facts are to be drawn by the jury and not by the presiding Judge. Fourth exception: “Where no’ special punishment is provided for a felony, it shall, at the discretion of the Court, be by one or more of the following modes, to wit: Confinement in the penitentiary, or in a workhouse or penal farm (when such institution shall exist), for a period not less than three months nor more than ten years, with such imposition of hard labor and solitary confinement as may be directed.” Criminal Code, § 124. “In cases of *121legal conviction, where no punishment is provided by statute, the Court shall award such sentence as is conformable to the common usages and practice in this State, according to the nature of the offense, and not repugnant to the Constitution.” Criminal Code, § 127. These sections must be construed together, and show that this exception must be sustained. This, however, does not entitle the appellant to a new trial, but merely to be resentenced.
It is therefore ordered that the case be remanded to the Court below for the sole purpose of a resentence.