State v. DeBerry, 18720

• Citation: 157 S.E.2d 637,250 S.C. 314
• Decision Date: 30 October 1967
• Docket Number: No. 18720,18720
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. J. D. DeBERRY, Appellant.

Page 637

157 S.E.2d 637

250 S.C. 314

The STATE, Respondent, v. J. D. DeBERRY, Appellant.

No. 18720.

Supreme Court of South Carolina.

Oct. 30, 1967.

Russell Brown, Charleston, for appellant.

Arthur G. Howe, Sol., Robert B. Wallace, A. Arthur Rosenblum, Asst. Sols., Charleston, for respondent.

LITTLEJOHN, Justice.

The defendant, J. D. DeBerry, was indicted for, tried and convicted by a jury, of assault and battery of a high and aggravated nature upon Charleston County Patrolman, J. T. Brown, in August 1966.

The defendant moved for a directed verdict at the end of the State's case, at the end of the entire case, and moved to set aside the verdict, or in the alternative, for a new trial after the verdict of the jury. All motions were overruled and sentence imposed.

Approximately three months later defendant moved for a new trial on the ground that women were systematically excluded from the grand jury and the petit jury which indicted and convicted him, in violation of the fourteenth amendment of the Constitution of the United States, which motion was also overruled.

By appropriate exceptions the defendant alleges error on the part of the lower court in failing to direct a verdict of acquittal as a matter of law, on the ground that the arrest was unlawful, and that the State failed to show an assault coupled with an unlawful act of violent injury upon the person of the police officer accompanied by circumstances of aggravation, and upon the ground that the verdict of the jury was against the weight of the evidence. In considering this question the evidence must be viewed in the light most favorable to the State. If there is any competent evidence which reasonable tends to prove facts in issue, the case must be submitted to the jury. State v. Young, 243 S.C. 187, 133 S.E.2d 210. There is evidence to create inferences as follows:

On the morning of July 3, 1966, at approximately 3 a.m., the defendant, who had been drinking, was stopped in his automobile by Patrolman Brown after a seven-mile chase at speeds estimated to be 100 miles per hour. The patrolman was driving an official police car clearly marked, and with a flashing blue light attached to the top, and was in full uniform with badge. Both drivers got out of their respective cars and recognized each other. The patrolman told the defendant two or three times to get in the patrol car and upon his failure to do so, said, 'DeBerry, you are under arrest for reckless driving. Get in the car.' The defendant did not submit to arrest, whereupon the patrolman took him by the arm. He became belligerent and the patrolman took out his night stick and again ordered him into the car, and told him if he dd not he was going to have to use the night stick.

The defendant grabbed the patrolman's hand and began tussling for the night stick until both of them fell in a drainage ditch. While tussling, the defendant took the patrolman's revolver and held it upon him, cursing him and threatening to kill him and made him beg for his life.

The patrolman managed to give a coded call for help over the cruiser radio and the defendant fled the scene in his own car, carrying the patrolman's revolver with him. He was apprehended shortly thereafter by another law enforcement officer by means of a roadblock. The defendant submitted to arrest by the other officer and turned over to him the revolver he had taken from Patrolman Brown.

Patrolman Brown was taken to the County Emergency Room for a checkup for two bruises, one on his right arm and one to his right finger, described as 'pretty bad.' He was allowed two days off from duty because of the injuries and shock sustained.

Serious bodily harm to the prosecuting witness is not necessary to establish an assault and battery of a high and aggravated nature. Should a stranger on the street embrace a young lady, or a large man improperly fondle a child, the assault and battery would be aggravated though no actual bodily harm was done. In like fashion, resistance to lawful arrest by constituted authority accompanied by an unlawful act against the person of a police officer becomes an assault and battery and may be of an aggravated nature though the officer suffers no actual bodily harm. See State v. Hollman, 232 S.C. 489, 102 S.E.2d 873.

The testimony most favorable to the defendant and given by him varies only slightly from that of the patrolman. He admitted that he was speeding and knew that he was under arrest. He contended, however, that he asked the officer why he was being arrested and received no answer. He also admitted taking the gun but denied pointing the same at the officer, saying he merely held the gun in his hand.

We think that the trial judge was correct in submitting the issue of assault and battery of a high and aggravated nature to the jury. A law enforcement officer is authorized to arrest a citizen for a misdemeanor such as speeding or reckless driving, committed in his presence. The defendant admitted in his own testimony that he was driving 60 to 65 miles per hour in a 35 mile zone and admitted that he was speeding. The patrolman testified that he told the defendant he was under arrest. It was his duty to submit, and upon failure to submit, the patrolman was justified in using as much force as was reasonably necessary to take him into custody. A citizen is not, of course, required to submit to an illegal arrest and may use as much force as is reasonably necessary to prevent an unlawful arrest.

The jury was charged on...