State v. Horne

• Citation: 319 S.E.2d 703,282 S.C. 444
• Decision Date: 07 May 1984
• Docket Number: No. 22157,22157
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. Terrance HORNE, Appellant. . Heard

Page 703

319 S.E.2d 703

282 S.C. 444

The STATE, Respondent, v. Terrance HORNE, Appellant.

No. 22157.

Supreme Court of South Carolina.

Heard May 7, 1984.

Decided Aug. 17, 1984.

Asst. Appellate Defender William Isaac Diggs, Columbia, H.E. Bonnoitt, Jr., Georgetown, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., and Sr. Asst. Atty. Gen. Brian P. Gibbes, Columbia, and Sol. James O. Dunn, Conway, for respondent.

SHAW, Acting Justice.

Appellant, Terrance Horne, was convicted of assault and battery with intent to kill and voluntary manslaughter in connection with the stabbing of his estranged wife, which resulted in the death of an unborn full-term viable female child the wife was carrying. We affirm in part and reverse in part.

In August 1982, appellant attacked his wife, Deborah Horne, who had passed the ninth month of her pregnancy, with a knife, wounding her in the neck, arms, and abdomen. After the attack, Mrs. Horne was rushed to the Georgetown Hospital emergency room where doctors, after determining the unborn child was still alive, performed a caesarian section to save the child's life. The child was dead when removed from the mother's womb. A subsequent autopsy revealed the child died in the womb as a result of suffocation caused by the mother's loss of blood. The mother survived.

The autopsy report also indicated the child experienced normal development, and had reached the point where it was capable of separate and independent existence apart from the mother.

The first issue on appeal concerns whether an unborn child is a "person" within the statutory definition of murder found in South Carolina Code Ann., Section 16-3-10 (1976). While this Court has previously discussed the crime of infanticide, requiring proof the infant was born alive, State v. O'Neall, 79 S.C. 571, 60 S.E. 1121 (1908); State v. Collington, 259 S.C. 446, 192 S.E.2d 856 (1972), we have never addressed feticide, the killing of an unborn child.

Here, the child was the unintended victim of appellant. If there was malice in appellant's heart, he was guilty of the crime charged, it matters not whether he killed his intended victim or a third person through mistake. State v. Heyward, 197 S.C. 371, 15 S.E.2d 669 (1941). This result is sometimes described as being a function of the doctrine of "transferred intent" whereby the actor's intent to kill his intended victim is said to be transferred to his actual victim. All that is required for murder is the mental state of malice, provided by the intent to kill a human being, coupled with an act which caused the death of a human being.

In Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964), this Court determined an action for wrongful death could be maintained for a viable, unborn fetus, holding a viable child constituted a "person" even before it left its mother's womb.

It would be grossly inconsistent for us to construe a viable fetus as a "person" for the purposes of imposing civil liability while refusing to give it a similar classification in the criminal context.

This Court has the right and the duty to develop the common law of South Carolina to better serve an ever-changing society as a whole. In this regard, the criminal law has been the subject of change. State v. Mouzon, 231 S.C. 655, 99 S.E.2d 672 (1957); State v. Brooks, 277 S.C. 111, 283 S.E.2d 830 (1981). The fact this particular issue has not been raised or...