State v. Cunningham
| Decision Date | 21 November 1969 |
| Docket Number | No. 18986,18986 |
| Citation | 171 S.E.2d 159,253 S.C. 388 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Carl F. CUNNINGHAM, Appellant. |
William L. Shipley, Moncks Corner, for appellant.
Solicitor, Robert B. Wallace, Charleston, for respondent.
Carl F. Cunningham, the appellant herein, was tried upon an indictment containing two counts: (1) Assault with intent to ravish; and (2) Assault and battery of a high and aggravated nature. The case came on for trial before The Honorable Clarence E. Singletary, Resident Judge of the Ninth Judicial Circuit, and a jury, at the 1968 June Term of the Court of General Sessions for Berkeley County. The jury found the appellant guilty of an assault and battery of a high and aggravated nature. He was sentenced to serve a term of ten years on the public works of said county or in the State Penitentiary. The appellant duly made a motion for a new trial and such was refused. This appeal followed.
During the course of the charge to the jury, the presiding judge was requested by counsel for the appellant to charge the jury the law of simple assault and battery. This request was refused and error is assigned for such refusal.
The rule is well settled that an indictment for a higher offense will sustain a conviction for a lower offense included in the higher and a jury can find a defendant guilty of a simple assault and battery under an indictment charging an assault and battery of a high and aggravated nature. It is not error, however, for a presiding judge to refuse to submit the question of simple assault and battery to the jury under an indictment for an assault and battery of a high and aggravated nature, unless there is testimony tending to show that the defendant is only guilty of a simple assault and battery. State v. Hollman, 245 S.C. 362, 140 S.E.2d 597.
Assault and battery of a high and aggravated nature is an unlawful act of violent injury to the person of another, accompanied by circumstances of aggravation, such as the use of a deadly weapon, the infliction of serious bodily injury, the intent to commit a felony, the great disparity between the ages and physical conditions of the parties, a difference in the sexes, indecent liberties or familiarities with a female, the purposeful infliction of shame and disgrace, resistance of lawful authority, and others. State v. Self, 225 S.C. 267, 82 S.E.2d 63; State v. Hollman, 245 S.C. 362, 140 S.E.2d 597.
A simple assault and battery, as the term implies, is an unlawful act of violent injury to the person of another, unaccompanied by any circumstances of aggravation. State v. DeBerry, 250 S.C. 314, 157 S.E.2d 637.
While agreeing that a charge of assault and battery of a high and aggravated nature may include a simple assault and battery, we cannot agree with the position of the appellant. We recite so much of the testimony to show that the position of the appellant is untenable.
The prosecutrix was a twenty-three year old matron. She was the wife of a member of the United States Navy, and, at the time of the happening here he was at sea and she was living in their home in Berkeley County. She testified that at about 11:30 P.M., on August 28, 1967, she was engaged in painting her living room. While so engaged, and wearing a pink nightgown and a pink robe, the appellant knocked at her door and inquired if she knew where a certain person lived. When she advised him that she did not know the person mentioned, he asked if he might use her telephone, and he was admitted to the home for this purpose. After finishing a telephone call, the appellant then asked for a drink of water, which was furnished him. He then asked as to what time of night it was. Since the only clock in the home was in the bedroom and in order to answer the appellant's question it was necessary for her to go to the bedroom. The appellant followed her into the bedroom. After...
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State v. Sprouse
...and battery" is an unlawful act of violent injury to another, unaccompanied by any circumstances of aggravation. State v. Cunningham, 253 S.C. 388, 171 S.E.2d 159 (1969); State v. Jones, 133 S.C. 167, 130 S.E. 747 As a matter of law, the offense of assault and battery cannot be a lesser inc......
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State v. Parker, 22825
...State v. Vanderbilt, 287 S.C. 597, 340 S.E.2d 543 (1986); State v. Owens, 291 S.C. 116, 352 S.E.2d 474 (1987); State v. Cunningham, 253 S.C. 388, 171 S.E.2d 159 (1969); State v. Fennell, 263 S.C. 216, 209 S.E.2d 433 (1974); State v. Suttles, 279 S.C. 87, 302 S.E.2d 338 (1983); State v. Myer......
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State v. Hill, 19067
... ... § 16--12, 1962 Code of Laws ... There is no statute which prescribes a specific punishment for assault and battery of a high and aggravated nature and the sentence for such offense is determined under the provisions of § 17--553 of the 1962 Code of Laws, State v. Cunningham, S.C., 171 S.E.2d 159, which must be construed in conjunction with the preceding § 17--552, State v. Self, 225 S.C. 267, 82 S.E.2d 63 ... These sections of the Code are as follows: ... 17--552--'When no special punishment is provided for a felony, it shall, at the discretion of ... ...
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State v. Robinson
...wrist, threw her onto her bed, held her hands together while removing her underwear, and attempted to have sex with her. 253 S.C. 388, 392, 171 S.E.2d 159, 161 (1969). Finally, in State v. Rouse , our supreme court affirmed the trial court's denial of the defendant's motion for a directed v......