State v. Foxworth

Citation269 S.C. 496,238 S.E.2d 172
Decision Date06 October 1977
Docket NumberNo. 20524,20524
CourtUnited States State Supreme Court of South Carolina
PartiesThe STATE, Respondent, v. David FOXWORTH, Appellant.

W. Gaston Fairey, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Brian P. Gibbes and Robert N. Wells, Jr., and Sol. James C. Anders, Columbia, for respondent.

GREGORY, Justice:

Appellant was convicted by a jury of assault and battery of a high and aggravated nature and was sentenced to nine years imprisonment. Error is assigned to the trial judge's refusal to charge the lesser included offense of simple assault and battery and his failure to grant appellant's motion for a directed verdict. We affirm.

On the morning of September 9, 1976, Ms. Judy Simons was waiting in her parked car to pick up her maid when she noticed a man approaching her car. The man reached into the car from the driver's side through the open window, grabbed Ms. Simons' left arm, and thrust a pistol into her ribs. When Ms. Simons jerked to the right, her foot slipped off the brake and her car rolled down the incline on which it was parked. The assailant fled.

Ms. Simons notified the Columbia Police Department and gave a detailed description of her assailant. A short time later, appellant was arrested approximately one and a half blocks from the scene of the assault. Appellant was not in possession of a pistol at the time of his arrest and was positively identified by Ms. Simons.

At trial appellant presented no defense.

On appeal appellant contends the lower court erred by refusing to charge the lesser included offense of simple assault and battery.

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

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.

All the evidence introduced and admitted at trial pointed to the assailant's guilt of assault and battery of a high and aggravated nature. Based on the uncontradicted testimony that Ms. Simons was attacked by an armed assailant, the jury could only find appellant guilty of assault and battery of a high and aggravated nature or not guilty. Thus, the trial judge properly...

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15 cases
  • State v. Geiger
    • United States
    • Court of Appeals of South Carolina
    • September 25, 2006
    ...refusing to charge the jury on the crime of manslaughter as a lesser-included offense of the crime of murder); State v. Foxworth, 269 S.C. 496, 499, 238 S.E.2d 172, 173 (1977) (possibility that the jury might have disbelieved the State's evidence as to the circumstances of aggravation in AB......
  • State v. Brown, 25863.
    • United States
    • United States State Supreme Court of South Carolina
    • August 30, 2004
    ...and disgrace, taking indecent liberties or familiarities with a female, and resistance to lawful authority. E.g. State v. Foxworth, 269 S.C. 496, 238 S.E.2d 172 (1977).2 "[A] sexual battery constitutes first-degree CSC under Section 16-3-652(1)(a) only if it was accomplished through the use......
  • State v. Means
    • United States
    • United States State Supreme Court of South Carolina
    • February 6, 2006
    ...and disgrace, taking indecent liberties or familiarities with a female, and resistance to lawful authority. E.g. State v. Foxworth, 269 S.C. 496, 238 S.E.2d 172 (1977). 3. See State v. Jones, 312 S.C. 100, 439 S.E.2d 282 (1994) (new rule of criminal law should be applied retroactively to ca......
  • State v. Tyndall
    • United States
    • Court of Appeals of South Carolina
    • May 24, 1999
    ...guilty of simple assault and battery does not entitle the defendant to have the lesser offense submitted to the jury. State v. Foxworth, 269 S.C. 496, 238 S.E.2d 172 (1977). See also State v. Funchess, 267 S.C. 427, 229 S.E.2d 331 (1976) (presence of evidence to sustain crime of a lesser de......
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