State v. Brown

• Decision Date: 06 October 1977
• Docket Number: No. 20523,20523
• Citation: 238 S.E.2d 174,269 S.C. 491
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Dennis BROWN, Appellant.

Page 174

238 S.E.2d 174

269 S.C. 491

The STATE, Respondent, v.Dennis BROWN, Appellant.

No. 20523.

Supreme Court of South Carolina.

Oct. 6, 1977.

John A. Mason, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Attys.Gen. Brian P. Gibbes and Richard P. Wilson; and Asst. Sol.J. Dennis Bolt, Columbia, for respondent.

GREGORY, Justice:

This is an appeal by Dennis Brown from his conviction by a jury of aggravated assault and battery.At issue is the trial judge's refusal to charge the lesser included offense of simple assault and battery.We affirm.

This case arose out of an altercation between appellant and Officer Donald L. Wand of the Columbia Police Department that took place sometime during the late hours of the evening of May 24, 1976.The record shows that appellant and his brother had been visiting Don's Lounge in the Five Point's area of Columbia, South Carolina.Just prior to the altercation the two brothers had been asked to leave the establishment by the management.

Officer Wand testified that on the night of the incident he was working the beat that included the area of Don's Lounge.As part of his routine patrol he had pulled up and parked his motorcycle near Don's.While approaching the entrance to Don's, Officer Wand witnessed a confrontation between appellant and the doorman that had been precipitated by appellant's attempts to re-enter the lounge.Officer Wand stepped forward and attempted to settle the matter by ordering appellant to go home.Appellant was permitted to enter Don's to retrieve a cup of beer he had purchased but left inside.

On emerging from Don's and after exchanging words with Officer Wand, appellant, together with his brother, proceeded to his car in an adjacent parking area approximately 150 feet from Don's.Before reaching his car, appellant threw his beer cup on the ground between the sidewalk and the curb.Officer Wand, who had been following appellant and his brother from the lounge, witnessed this and ordered appellant to pick up the cup or be arrested for littering.Although appellant refused to obey the officer, appellant's brother picked up the cup and the brothers continued toward their car.Appellant then took the cup from his brother and threw it to the ground again.As appellant opened his car door and was getting in, Officer Wand reached into the car, grabbed appellant by the front of his shirt, placed him under arrest and told him to get out of the car.At the same time Officer Wand called for back-up assistance on his radio.

Appellant testified that Officer Wand did not tell him he was under arrest, but grabbed him and hit him over the head with a night stick.Appellant further testified he then tried to restrain the officer from striking him with the night stick again.

Contrary to appellant's testimony, Officer Wand stated that as appellant was emerging from the car after being placed under arrest, appellant struck the officer in the face and somehow got behind the officer and began choking him about the neck.Officer Wand testified he did not strike appellant with a night stick prior to this time, but did strike the appellant with a night stick in an attempt to stop the appellant from choking him.One corroborating witness for the State indicated appellant had actually jumped on Officer Wand's back, holding on with his legs while choking the officer with his hands and arms.

Several persons in the vicinity of Don's immediately rushed to Officer Wand's assistance, and together with four police officers who arrived in response to Officer Wand's call for assistance managed to subdue appellant.Appellant was handcuffed and transported to police headquarters.

Appellant was indicted by the Richland County Grand Jury for aggravated assault and battery and resisting arrest.He was found guilty of the offense of aggravated assault and battery and was sentenced to serve six years imprisonment.This appeal followed.

Although four exceptions were taken, one was not briefed on appeal and another was abandoned at oral argument.The first of the two remaining exceptions involves the trial judge's refusal to charge the lesser included offense of simple assault and battery.

In State v. Cunningham, 253 S.C. 388, 171 S.E.2d 159, 160(1969), we stated:

The rule is well settled that an indictment for a higher offense will...