State v. Johnson

• Decision Date: 14 July 1938
• Docket Number: 14722.
• Citation: 198 S.E. 1,187 S.C. 439
• Parties: STATE v. JOHNSON.
• Court: South Carolina Supreme Court

198 S.E. 1

187 S.C. 439

STATE v. JOHNSON.

No. 14722.

Supreme Court of South Carolina

July 14, 1938

Appeal from General Sessions Circuit Court of Horry County; H. F Rice and M. M. Mann, Judges.

Ed Johnson was convicted of assault and battery of a high and aggravated nature, and he appeals.

Affirmed.

W. O Godwin, of Conway, for appellant.

G Lloyd Ford, Solicitor, of Conway, for the State.

STABLER Chief Justice.

The defendant was tried under an indictment charging him with assault and battery with intent to kill and murder one Vardelle Hucks. He was convicted of assault and battery of a high and aggravated nature and sentenced to imprisonment for eight months or to pay a fine of $300.00.

At the close of his instructions to the jury, Judge Rice was requested by counsel for the defendant to "charge simple assault and battery." He refused, however, to do so; and whether he was right or wrong in this, is the main question presented for decision. Later, before the time for perfecting the appeal taken had elapsed, the defendant was allowed by the court to move for a new trial on after-discovered evidence. The motion was heard by Judge Mann, and his refusal to grant it is also made the basis of an exception. The two questions raised will be considered in the order above indicated .

First. In State v. Jones, 133 S.C. 167, 130 S.E. 747, the court, speaking through Mr. Justice Cothran, said (page 751):

"An 'assault' is an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another.

A 'battery' is the successful accomplishment of such attempt. While there is no statutory definition of the offense of 'assault and battery' in this state, common usage for convenience has divided the offense into three degrees: (1) Assault and battery with intent to kill and murder; (2) assault and battery of a high and aggravated nature; (3) simple assault and battery. The division is intended more for the purpose of imposing sentence than of establishing distinct crimes or degrees of a crime. For the sake of brevity these divisions will be referred to as of the first, second, and third degrees.

The first degree contains all of the elements of murder except the actual death of the person assaulted; so that before the accused can be convicted of this charge, the jury must be satisfied beyond a reasonable doubt, from the evidence, that if the party assaulted had died as a result of the injury, the defendant would have been guilty of 'murder,' which is defined in section 1 of the Criminal Code, as 'the killing of any person with malice aforethought, either express or implied.' It is apparent that there must be, not simply the intent to kill, for that may be present in a case of manslaughter, but the intent to kill accompanied with malice, the distinguishing element between murder and manslaughter."

The court then defined as follows the other "degrees" of the offense, pointing out that what we have quoted just above with reference to the first degree was sufficient:

"'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.

'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."

And as to the use of a deadly weapon:

"The charge of the circuit judge in this case that wounding with a deadly weapon was an assault of a high and aggravated nature is sustained by the authorities, particularly State v. McKettrick, 14 S.C. 346. In State v. Beadon, 17 S.C. 55, it was held that an assault with a shovel was one of aggravated nature; so in State v. Smalls, 17 S.C. [62] 63, with a barrel stave; and in State v. Burch, 43 S.C. 3, 20 S.E. 758, with a pistol." To the same effect is State v. Dalby, 86 S.C. 367, 68 S.E. 633.

In State v. Knox, 98 S.C. 114, 82 S.E. 278, after stating the rule that (page 279) "an indictment for a higher offense will sustain a conviction for a lower offense included in the higher," the court declared-a conclusion of general acceptance-that it is not error for a presiding Judge "to refuse to submit the question of [simple?] assault and battery to the jury, under an indictment for assault and battery with intent to kill, unless there is testimony tending to show that the defendant is only guilty of assault and battery." See, also, State v. Du Rant, 87 S.C. 532, 70 S.E. 306, where it was held (page 307) that the "purpose of a charge is to enlighten the jury," and that "this purpose is accomplished by a statement of the law which fits the concrete case."

With the above stated principles of law in mind, we turn to an examination of the testimony contained in the record before us. Vardelle Hucks, the prosecuting witness, testified that she started to work a crop with the defendant in 1937 on shares; that he furnished her a piece of land for corn that was not good, and that she planted a small piece which a neighbor gave her; that when the defendant learned of this, he told her that she "couldn't sharecrop with the other man and him, too," and refused several times "to let me have the mule to plow with." She further stated that on or about May 31, 1937, she and a man named Ben Hucks were hoeing in a tobacco patch, a small one which she was working on shares for the defendant, and that "him and his wife come out with their hoes and he walked up and broke my hoe out of the handle in two separate pieces. Then he hit me on the head with his hoe, and I hit him with the piece of the handle I had in my hand. Then he knocked me down when he struck me on the arm and struck me on the leg and cut a gash in my leg, and his wife come to beat me with her hoe, and I grabbed it and he come back and beat my fingers to pieces on her hoe handle." She also said that she had done nothing to cause him to hit her with the hoe. In fact, that she had said nothing to him and he nothing to her, and that he struck her, without any reason for doing so, on the side of the head with the eye part of the hoe, then chopped her on the arm and knocked her down; and that he chopped her on the leg when she was down.

Ben Hucks testified as follows: "Me and this girl was in the field hoeing tobacco and was about out to the end rows, and I happened to look up and him and his wife was coming towards us with their hoes on their shoulders, and he come up and spoke to me and said 'good morning, Ben'. He said, 'I thought I told you about that corn'. At that time he struck this girl's hoe and broke it out of the handle. When he broke it out of the handle he knocked her down with the hoe and when he knocked her down he run at me with the hoe and I run." He also stated that the defendant hit the prosecuting witness on the side of the head, on the arm and leg and "her fingers was beat"; that she lay there "squalling and hollering"; and that he saw her right afterwards, and "she was bleeding and cut up." Hucks denied having hit the defendant in the stomach with a hoe, or that he had hit him at all; but said that when Johnson knocked the woman down, the witness ran away.

Daniel Williamson stated that he was about 298 steps from where the difficulty took place; "I didn't see them when they first met up that morning, but pretty soon after they did get up I saw him come overhanded with his hoe and she fell. Then he turned and took after Ben Hucks with his hoe, and his wife went on Vardelle Hucks, and she must have got hold of her hoe handle and they were down around there,...