State v. Graham

• Decision Date: 09 May 1973
• Docket Number: No. 19625,19625
• Citation: State v. Graham, 260 S.C. 449, 196 S.E.2d 495 (S.C. 1973)
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Douglas McArthur GRAHAM, Appellant.

Page 495

196 S.E.2d 495

260 S.C. 449

The STATE, Respondent, v. Douglas McArthur GRAHAM, Appellant.

No. 19625.

Supreme Court of South Carolina.

May 9, 1973.

Sidney T. Floyd, and Franklin R. Dewitt, Conway, for appellant.

Atty. Gen. Daniel R. McLeod, and Asst. Attys. Gen. Emmet H. Clair, and Robert M. Ariail, Columbia, for respondent.

LEWIS, Justice:

Appellant was convicted of manslaughter under an indictment charging him with murder and received a sentence of twelve years. Upon his trial, he admitted shooting the deceased, but claimed that he did it in self-defense. In connection with the charge on the plea of self-defense, the trial judge, over appellant's objection, instructed the jury concerning the law of mutual combat and that the plea of self-defense could not be invoked if the shooting resulted from a mutual intent to fight. The sole contention of appellant in this appeal is that the instructions concerning the law of mutual combat, although containing correct legal principles, were prejudicial because there was no evidence to sustain the submission of that issue to the jury.

To constitute mutual combat there must exist a mutual intent and willingness to fight. Nauful v. Milligan, 258 S.C. 139, 187 S.E.2d 511; and this intent may be manifested by the acts and conduct of the parties and the circumstances attending and leading up to the combat. 40 C.J.S. Homicide § 122, p. 997.

As a general rule, the plea of self-defense is not available to one who kills another in mutual combat. State v. Jones, 113 S.C. 134, 101 S.E. 647.

The basic principles governing the doctrine of mutual combat are thus stated in 40 C.J.S. Homicide § 122, p. 996:

'Where a person voluntarily participates in . . . mutual combat for purposes other than protection, he cannot justify or excuse the killing of his adversary in the course of such conflict on the ground of self-defense, regardless of what extremity or imminent peril he may be reduced to in the progress of the combat, unless, before the homicide is committed, he withdraws and endeavors in good faith to decline further conflict, and, either by word or act, makes that fact known to his adversary, . . ..'

We held in State v. Andrews, 73 S.C. 257, 53 S.E. 423 that, 'where two persons mutually engage in combat, and one kills the other, and at the time of the killing it be maliciously done, it is murder; if it be done in sudden heat and passion upon sufficient provocation without premeditation or malice, it would be manslaughter.'

The evidence in this case warranted the submission of the issue of mutual combat to the jury...