State v. Hollman, 18308

• Decision Date: 24 February 1965
• Docket Number: No. 18308,18308
• Citation: 245 S.C. 362,140 S.E.2d 597
• Parties: The STATE, Respondent, v. Bobby HOLLMAN, Appellant.
• Court: South Carolina Supreme Court

Page 597

140 S.E.2d 597

245 S.C. 362

The STATE, Respondent, v. Bobby HOLLMAN, Appellant.

No. 18308.

Supreme Court of South Carolina.

Feb. 24, 1965.

Younts & Spence, Greenville, for appellant.

Sol C. Victor Pyle, Greenville, for respondent.

MOSS, Justice.

The appellant, Bobby Hollman, was tried and convicted in the Greenville County Court, on November 21, 1963, under an indictment charging him with the offense of an assault and battery of a high and aggravated nature. Prior to the charge to the jury, the presiding Judge was requested by counsel for the appellant to charge as to simple assault and battery. Following his conviction, the appellant made a motion for a new trial on the ground that the presiding Judge committed error in failing to charge the law of simple assault and battery. The motion for a new trial was denied and this appeal followed.

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 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. DuRant, 87 S.C. 532, 70 S.E. 306; State v. Knox, 98 S.C. 114, 82 S.E. 278; State v. Jones, 133 S.C. 167, 130 S.E. 747; State v. Howard, 151 S.C. 150, 148 S.E. 701; State v. Johnson, 187 S.C. 439, 198 S.E. 1; State v. Self, 225 S.C. 267, 82 S.E.2d 63, and State v. Shea, 226 S.C. 501, 85 S.E.2d 858.

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.

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. Jones, 133 S.C. 167, 130 S.E. 747, and State v. Germany, 211 S.C. 297, 44 S.E.2d 840.

Keeping in mind the foregoing principles of law, we examine the testimony contained in the record before us. Dorothy Lewers, the prosecuting witness, is a seventeen year old negro girl and, on May 4, 1963, she was riding in an automobile operated by Odell Brown, Jr., an eighteen year old negro boy. She testified that they were riding on a paved highway in Greenville County, near the town of Fountain Inn, and that they stopped at a little store on the side of said highway. When they left this store they were stopped by the appellant and he asked that they give his car a push because something was wrong with it. She testified that the car in which they were riding was turned around and they pushed the appellant's car off and got it started to running. Brown then turned the car he was driving around to continue his journey, and the appellant turned his car around and passed the car in which she was riding. The appellant stopped his car some distance in front of the car in which the prosecutrix was riding and at a signal from the appellant Brown stopped his car opposite the place in the road where the appellant was standing. The prosecutrix then testified that when they stopped the automobile she rolled down the glass on the side on which she was sitting and instead of the appellant talking through the window to her 'he jerked the door open and jumped up on the seat and grabbed me around the neck with his left hand; and he had a knife in his right hand. And he told Odell to go on home, go on home Sonny, like that; and he was up on his knees on the seat.' She further testified that Odell Brown, Jr. grabbed the right hand of the appellant in which he held the knife and while this was going on the appellant 'jerked me out of the car; I fell out of the car on my back, and, I fell out, and Odell told me to run.' She testified that she ran up a dirt road and yelled for Odell 'to come on' and he started up the dirt road and as they were going up the road it seemed as though the appellant was coming towards them in his car. She further testified that they ran across a field to get away from him. The prosecutrix further testified that she got two cuts on her arm and got...