State v. Marshall, 21036

Decision Date21 August 1979
Docket NumberNo. 21036,21036
Citation257 S.E.2d 740,273 S.C. 552
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. John Wesley MARSHALL, Appellant.

Michael J. Thompson, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Brian P. Gibbes, Staff Atty. Buford S. Mabry, Jr., and Sol. James C. Anders, Columbia, for respondent.

LEWIS, Chief Justice:

Appellant was convicted and sentenced (1) to imprisonment for ten (10) years on a charge of assault and battery of a high and aggravated nature and (2) to imprisonment for fifteen (15) years on a charge of criminal sexual conduct in the second degree, the sentences to run consecutively. He has appealed alleging error (1) in the refusal of his motion to quash the indictment charging criminal sexual conduct in the second degree; (2) in refusing to direct a verdict as to that offense; and (3) in denying his request to dismiss his court appointed counsel and to permit him to represent himself at trial.

The indictments in this case were not included as a part of the Transcript but have, admittedly, been accurately set forth as exhibits attached to respondent's brief. The indictment purportedly charging criminal sexual conduct is as follows:

CRIMINAL SEXUAL BATTERY SECOND DEGREE

That John Wesley Marshall did . . ., wilfully, unlawfully and feloniously sexually assault a woman, to-wit: (Prosecutrix ), age 11, by means of aggravated coercion, to-wit: by removing his clothes and getting on top of (Prosecutrix ), by kissing her, and by asking her to feel the private parts of his body.

Appellant's motion to quash the foregoing indictment upon the ground that it failed to allege any overt act sufficient to constitute criminal sexual conduct in the second degree was denied by the trial judge and forms the basis for the first ground of appeal.

Under the provisions of Section 16-3-655(2) of the 1976 Code of Laws (Supplement):

A person is guilty of criminal sexual conduct in the second degree if the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age and the actor is at least three years older than the victim.

Therefore, in order to constitute the offense of criminal sexual conduct described in the quoted section, the element of "sexual battery" must be present. The phrase "sexual battery," as used in the statute is defined in Code Section 16-3-651(h) as follows:

'Sexual battery' means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes.

Clearly, even the most casual and simple reading of the indictment in this case shows that it fails to charge the essential elements of "sexual battery." The absence of such material allegations would render the indictment fatally defective, if intended to charge the offense of criminal sexual conduct.

The State argues, however, that the indictment was sufficient to charge the offense of assault with intent to commit...

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3 cases
  • State v. Sims
    • United States
    • South Carolina Supreme Court
    • 24 Septiembre 1990
    ...addressed to the discretion of the trial judge. Only in a case of abuse of discretion will this Court interfere. State v. Marshall, 273 S.C. 552, 257 S.E.2d 740 (1979); State v. Hyman, 276 S.C. 559, 281 S.E.2d 209 (1981). In evaluating whether the trial judge abused his discretion in denyin......
  • State v. Hyman, 21524
    • United States
    • South Carolina Supreme Court
    • 22 Julio 1981
    ...motion was addressed to the discretion of the trial judge and will not be disturbed absent an abuse of discretion. State v. Marshall, 273 S.C. 552, 257 S.E.2d 740 (1979). Moreover, the burden was on appellant to show satisfactory cause for removal. State v. Marshall, We conclude the evidenc......
  • State v. Justice
    • United States
    • South Carolina Court of Appeals
    • 6 Marzo 2007
    ... ... of the trial judge. Only in case of abuse of such discretion ... will this court interfere.” State v. Marshall, ... 273 S.C. 552, 555, 257 S.E.2d 740, 742 (1979). The defendant ... bears the burden to show satisfactory cause for removal ... ...

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