State v. Jones

• Decision Date: 10 November 1925
• Docket Number: 11858.
• Citation: 130 S.E. 747,133 S.C. 167
• Parties: STATE v. JONES.
• Court: South Carolina Supreme Court

130 S.E. 747

133 S.C. 167

STATE v. JONES.

No. 11858.

Supreme Court of South Carolina

November 10, 1925

Appeal from General Sessions Circuit Court of Kershaw County; R. W Memminger, Judge.

Bennie Jones was convicted of assault and battery with intent to kill and murder, and he appeals. Affirmed.

Mendel L. Smith, of Camden, for appellant.

A. F Spigner, Sol., of Columbia, for the State.

COTHRAN J.

Indictment and conviction of assault and battery with intent to kill and murder. Sentence, five years' imprisonment. Defendant appeals.

The facts of the case, as stated by counsel for the defendant admittedly in the light most favorable to the defendant, were these:

"That he was quietly going to his work of building a house just across the street from his home, when the prosecutor, who had concealed himself behind a pile of laths used in this building, arose and struck him with a trace chain, by no means a harmless weapon, cutting a gash in his head which had to be sewed up by a surgeon. After the infliction of this wound, the prosecutor struck the appellant again with the chain, knocking him to his knees. He arose and ran to his house, where a member of his family applied some crude domestic remedy to stop the flow of blood from his wound. His clothes were exhibited in court in support of his testimony showing blood stains. After remaining in his house about a half hour, he went across the street to the building taking his gun for his protection, if necessary. He did not see the prosecutor or know where he was when he left the house. As he was crossing the street, one of his children suddenly warned him of the approach of the prosecutor with the chain in his hand in a striking position. The appellant called him to stop and not come on him, but the prosecutor continued to advance, when he shot him once with his shotgun."

On the other hand, the version of the affair given by the witnesses for the state was as follows:

On the day before the shooting, the defendant had slapped the small son of the prosecutor. The matter was reported to the prosecutor, and he sought the defendant for an explanation. The interview was not entirely satisfactory to the prosecutor, who left with the injunction that such conduct must not be repeated: "The prosecutor then left and reported the matter to Policeman Cooley of the city of Camden, and did not see the defendant any more until about 6 o'clock the following morning, at which time he was riding his horse down Campbell street, near the defendant's house, going to a restaurant, where his wife worked, to get his breakfast. He had unhitched his horse from the wagon where he was working and was riding him with harness on and had a trace chain in his hand. The defendant came across the street from his home, and they met alone in the street. The defendant came close to the horse upon which the prosecutor was riding, with his dinner bucket on his arm, and said to the prosecutor that he had whipped his damned boy and was going to cut hell out of him, and immediately cut at him with a knife. The prosecutor immediately jumped off his horse on the left side, and the defendant went quickly around the horse's head to cut him, when the prosecutor struck the defendant 'one lick across the head with that trace chain.' The defendant then went into his house, which was about one-half acre away, and while standing on the front porch leaned in the door and got a doublebarrel shotgun. When the prosecutor saw this, he dropped his bucket in the street and ran into the yard of Henry Anderson to get out of the way. Defendant came on down the sidewalk, with his gun in his hand, and just as the prosecutor was coming around the corner of Anderson's house, in the yard, the defendant shot him once with a gun from the rear, the shot hitting him in the side, arm, and hand. The back part of Anderson's house had high pillars, and the prosecutor could see the defendant, but the latter could not see him until he (defendant) got within about 30 or 40 feet of him. At the time he was shot, the prosecutor had no weapon, except the trace chain, in his hand. Henry Anderson told defendant not to shoot any more. The prosecutor stayed in the yard until Policeman Cooley arrived, and he then went to the office of Dr. Pickett, a colored physician for treatment, having previously washed his hands in the house of Richard Haile, just above Anderson's. James McGirt, now dead, carried him to the doctor. As a result of his wounds, he could not work for about two months but can now work a little. He has been wearing a glove on his wounded hand since he was shot, and the fingers of this hand have not been working since. Besides the prosecutor, Hattie Anderson, Henry Anderson, Rectine Rice, and Dr. Pickett, colored, testified for the state." The prosecutor was wounded in the side, arm, and hand.

The exceptions raise four questions which will be considered in the order set forth below.

The first question: The appellant contends that the circuit judge committed reversible error in excluding from the consideration of the jury a possible finding that the defendant was guilty only of a simple assault and battery. The court instructed the jury as follows:

" You have this defendant, Bennie Jones, indicted before you on an indictment charging him with assault and battery with intent to kill, which includes an assault and battery of a high and aggravated nature, and also includes simple assault and battery under the general definition, except that we cannot possibly have that in this case, for the reason that the injury inflicted and the weapon used are both of such a serious nature that if you find the defendant guilty at all, you cannot find him guilty of anything less than an assault and battery of a high and aggravated nature.

Now, under these facts and circumstances, you take the record and write either 'guilty,' which would mean guilty of an assault and battery with intent to kill, or guilty of assault and

battery of a high and aggravated nature, or 'not guilty,' and let the foreman sign it with his name and 'foreman' under it and the date."

It is therefore plain that the court positively instructed the jury, as a matter of law, that under no circumstances could the accused be convicted of a simple assault and battery. The question of alleged error is therefore squarely presented.

The first matter that attracts our attention is that the jury has convicted the defendant of assault and battery with intent to kill and murder, an offense which contains all the elements of murder except the death of the party assailed. It is difficult to perceive, then, how the defendant could possibly have been prejudiced by excluding from the consideration of the jury the question of simple assault and battery.

But waiving this consideration, the evidence shows without dispute that the prosecutor was shot with a double-barreled shotgun, as dangerous a weapon, within its range, as human ingenuity has devised, and was seriously wounded, incapacitating him from labor for two months and leaving him with a disabled hand, perhaps for life. The evidence for the State makes out a case of assault and battery with intent to kill and murder; that of the defendant a case of self-defense.

There is no doubt as to the deadly character of the weapon used and the serious character of the wounds inflicted. The question is resolved into this: When the defendant has used a deadly weapon and inflicted serious physical injury upon the prosecutor, is he entitled, simply upon the ground that he has interposed the plea of self-defense, to have the issue of simple assault and battery submitted to the jury?

There is no doubt as to the general proposition thus announced in the case of State v. Knox, 98 S.C. 114, 82 S.E. 278:

"An indictment for a higher offense will sustain a conviction for a lower offense included in the higher, and that a jury can find a defendant guilty of an assault and battery [we interpolate, either aggravated or simple] under an indictment charging assault and battery with intent to kill [and murder]."

But in the same case it is declared (a conclusion universally accepted):

"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 assault and battery with intent to kill, unless there is testimony tending to show that the defendant is only guilty of assault and battery."

"To instruct the jury in a criminal case that the defendant cannot properly be convicted of a crime less than that charged, or to refuse to instruct them in respect to the lesser offenses that might, under some circumstances, be included in the one so charged--there being no evidence whatever upon which any verdict could be properly returned except one of guilty or one of not guilty of the particular offense charged--is not error." Sparf v. U. S., 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343.

" It is unnecessary for the Court on its own motion or on request to instruct as to the lower grades of crime involved, when there is no evidence on which to base such instruction." State v. Fruge, 106 La. 694, 31 So. 323.

In State v. Kirkland, 14 Rich. 230, it is said:

"If there was no evidence in this cause which, if believed, would have warranted the jury in mitigating the offense of the prisoners to the crime of manslaughter, then the charge of the presiding judge is obnoxious to no just exception." Carlton v. State, 109 Ark. 516, 161 S.W. 145; Gibson v. State, 10 Ga.App. 117, 72 S.E 944; Wade v. State, 11 Ga.App. 411, 75 S.E. 494; State v. Sparks, 79 Kan. 548, 99 P. 1130; Thompson v. State, 85 Neb. 244, 122 N.W. 986; Hardin v. State, 51 Tex. Cr. R. 559, 103 S.W. 401; State v. Kruger, 60 Wash. 542, 111 P.

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