State v. Austin, 23096
| Decision Date | 08 February 1989 |
| Docket Number | No. 23096,23096 |
| Citation | 385 S.E.2d 830,299 S.C. 456 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. John Douglas AUSTIN, Appellant. . Heard |
Chief Attorney William I. Diggs and Asst. Appellate Defender Tara D. Shurling, S.C. Office of Appellate Defense, Columbia, for appellant.
Attorney General T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., Columbia, and Solicitor Joseph J. Watson, Greenville, for respondent.
Appellant John Austin was convicted of simple assault and battery, strong arm robbery, and petit larceny. The trial court sentenced appellant to eight years imprisonment for robbery, thirty days concurrent for petit larceny and thirty days concurrent for simple assault and battery. Appellant appeals alleging the trial court erred by denying his request for an additional jury charge on the law of mere presence, denying his motion requiring the state to elect between robbery and petit larceny and asserts further that conviction for robbery and petit larceny constitutes double jeopardy. We affirm in part and reverse in part.
Mark Davis testified that on April 2, 1987, while walking home from a convenience store, he was attacked and his money taken by the appellant and another man. Davis testified that the appellant grabbed his neck and, along with the other man, beat him.
Wayne Townsend, a police officer with the Greenville County Sheriff's Department, testified that while he was driving home from work he observed the attack on Davis. According to Officer Townsend, Davis was on the ground and the appellant and the other man were hitting him with their fists. Townsend said he saw the appellant kick Davis in the ribs and in the head. Townsend approached the scene, announced that he was a police officer, and directed the assailants to desist. Davis complained to Officer Townsend that "they" had taken his money.
Appellant's version of the incident differs from the versions propounded by Davis and Officer Townsend. Appellant testified that as he was walking down the street, two men approached him. One of them stopped, turned around, and went the other way. The other man approached the appellant, asked for a cigarette and began to follow the appellant. Appellant then saw Davis coming down the street. Appellant testified that the man who was following him approached Davis and requested a quarter. Davis told the man that he did not have a quarter. The man then grabbed Davis around the neck and pulled Davis to the ground. Appellant testified that he was knocked to the ground by the unknown assailant and, as a result, became physically entangled in the assailant's attack on Davis. Appellant denies grabbing or kicking Davis and contends the unknown assailant took Davis' wallet.
We first address appellant's argument that the trial court erred by denying his request for an additional jury charge on the law of mere presence.
A request to charge a correct statement of the law on an issue raised by the indictment and the evidence presented at trial should not be refused. State v. Kimbrell, 294 S.C. 51, 362 S.E.2d 630 (1987). However, if the trial judge refuses to give a specific charge, there is no error if the charge actually given sufficiently covers the substance of the request. Id.
...
To continue reading
Request your trial
-
State v. Cherry
...of the law on an issue raised by the indictment and the evidence presented at trial should not be refused." State v. Austin, 299 S.C. 456, 385 S.E.2d 830, 831 (1989); see also State v. Addison, 343 S.C. 290, 540 S.E.2d 449 (2000); State v. Kimbrell, 294 S.C. 51, 362 S.E.2d 630 Although the ......
-
State v. Cherry
...of the law on an issue raised by the indictment and the evidence presented at trial should not be refused." State v. Austin, 299 S.C. 456, 385 S.E.2d 830, 831 (1989); see also State v. Addison, 343 S.C. 290, 540 S.E.2d 449 (2000); State v. Kimbrell, 294 S.C. 51, 362 S.E.2d 630 (1987). Altho......
-
State v. Al-Amin
...Larceny is a lesser-included offense of armed robbery. See State v. Parker, 351 S.C. at 570-71, 571 S.E.2d at 290; State v. Austin, 299 S.C. 456, 385 S.E.2d 830 (1989). Larceny is also implicit within the crime of To restrict the application of Rule 609(a)(2) only to those offenses which ev......
-
State v. Moore
...at 290 ("Larceny has been found to be a lesser-included offense of robbery by this Court on several occasions."); State v. Austin, 299 S.C. 456, 385 S.E.2d 830 (1989) (petit larceny is a lesser-included of strong armed robbery); State v. Harkness, 288 S.C. 136, 341 S.E.2d 631 (1986) (petit ......