State v. Germany

• Decision Date: 01 November 1947
• Docket Number: 16003.
• Citation: 44 S.E.2d 840,211 S.C. 297
• Parties: STATE v. GERMANY et al.
• Court: South Carolina Supreme Court

44 S.E.2d 840

211 S.C. 297

STATE v. GERMANY et al.

No. 16003.

Supreme Court of South Carolina

November 1, 1947

J. A. Hutto and F. Ehrlich Thomson, both of Columbia, for appellants.

T P. Taylor, Sol., of Columbia, for respondent.

STUKES Justice.

The appellants were convicted of assault and battery of a high and aggravated nature at the April 1947 term of the Court of General Sessions for Richland County upon an indictment which charged upon the first count assault and battery with intent to kill and murder, and the second count charged conspiracy. They were acquitted upon the second count.

The appeal is upon exceptions which raise three questions, the last of which is whether the evidence was sufficient to warrant the conviction. There was no direct evidence of the use by the defendants of a weapon; but the circumstances were ample to sustain the inference that more was used than the fists of the assailants, and the opinion of the attending physician was that the facial wounds of the prosecutor could not have been caused by fists alone. The disablement and hospitalization were circumstances in themselves. In view of the necessity of a new trial by jury who will be the arbiters of the facts, the evidence will not be further recounted. We think it was sufficient to justify the verdict found.

In further inverse order, we consider the second question presented by appellants. It imputes error in the charge with respect to the right of brother to defend brother from an assault and battery. We think that the jury could not have been misled to appellants' prejudice by the instruction on this subject, as urged by appellants. There is no need to quote the charge or cite authorities upon the point. There was no request for amplification of this, or any other, portion of the instructions. See State v. White, S.C., 44 S.E.2d 741.

The remaining question for consideration, the first in the order of their argument, presents the proposition that the court erred in defining to the jury the grades of assault and battery. The alleged error is contained in the following excerpt from the instructions: 'You must decide from the testimony whether or not there were aggravating circumstances. As examples of aggravating circumstances may be mentioned the infliction of violent injury, and many other matters may be considered by the jury, in order to determine whether or not an assault and battery, if you find one was...