State v. Funchess, 20290
| Decision Date | 18 October 1976 |
| Docket Number | No. 20290,20290 |
| Citation | 267 S.C. 427,229 S.E.2d 331 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Prailow FUNCHESS, Appellant. |
William T. Toal, Columbia, for appellant.
Atty. Gen., Daniel R. McLeod, Asst. Attys. Gen., Joseph R. Barker and Joseph A. Wilson and Staff Atty., Perry M. Buckner, Columbia, and Sol. Norman E. Fogle, Orangeburg, for respondent.
Appellant was convicted of robbery, housebreaking, and assault with intent to ravish and received consecutive sentences totalling fifty (50) years. The trial judge limited the charges submitted to the jury to the foregoing offenses and refused appellant's timely request that the charge of assault and battery of a high and aggravated nature be also submitted as a lesser included offense of assault with intent to ravish. The sole question presented by appellant on appeal is whether the trial judge erred in refusing the request for an instruction on assault and battery of a high and aggravated nature.
The testimony shows that appellant and his codefendant forced themselves into the home of the prosecutrix about 11:30 a.m., at a time when only she and her 87 year old aunt were present, and committed a robbery. During the course of the incident, the prosecutrix and her aunt were beaten and forced to go upstairs in the house. While being forced up the stairs, the prosecutrix fell and appellant placed his hand under her clothes touching her private parts. He then forced the prosecutrix onto the bed where she was held and told her: 'I am going to rape you.' The codefendant testified that appellant told the prosecutrix that he would rape her if she didn't give him more money. She attempted to get off the bed but on each attempt she was struck and knocked back. The vicious attack by appellant upon the prosecutrix ended only when her aunt was able to get a pistol, kept in a bedside table, and shoot the codefendant.
Assault and battery of a high and aggravated nature is a lesser included offense of the charge of assault with intent to ravish, State v. Shea, 226 S.C. 501, 85 S.E.2d 858. However, this does not require that the lesser included offense be submitted to the jury in every case of assault with intent to ravish.
We have held that it is not error to refuse to submit a lesser included offense unless there is testimony tending to show that the defendant is Only guilty of the lesser offense. State v. Hollman, 245 S.C. 362, 140 S.E.2d 597.
Hollman involved the offense of assault and battery of a high and aggravated...
To continue reading
Request your trial
-
Beck v. Alabama
...State v. Thayer, 32 Or.App. 193, 573 P.2d 758 (1978); Commonwealth v. Terrell, 482 Pa. 303, 393 A.2d 1117 (1978); State v. Funchess, 267 S.C. 427, 229 S.E.2d 331 (1976); State v. Grimes, 90 S.D. 43, 237 N.W.2d 900 (1976); Howard v. State, 578 S.W.2d 83 (Tenn.1979); Day v. State, 532 S.W.2d ......
-
Tenner v. State
...1119 (1978) (when "there is evidence that would rationally sustain" a verdict of guilty of the lesser offense); State v. Funchess, 267 S.C. 427, 229 S.E.2d 331, 332 (1976) ("The presence of evidence to sustain the crime of a lesser degree determines whether it should be submitted to the jur......
-
State v. Geiger
...to satisfy the requirement that some evidence tend to show the defendant was guilty only of the lesser offense. See State v. Funchess, 267 S.C. 427, 229 S.E.2d 331 (1976) ("the presence of evidence to sustain the crime of a lesser degree determines whether it should be submitted to the jury......
-
State v. Elliott, 25356.
...Stewart, 283 S.C. 104, 109, 320 S.E.2d 447, 451 (1984). ABHAN was considered a lesser included offense of AIR. State v. Funchess, 267 S.C. 427, 429, 229 S.E.2d 331, 331 (1976). Subsequent to the enactment of the CSC statutes, we have continued to treat ABHAN as a lesser included offense of ......