State v. Ml Ms

• Decision Date: 23 November 1925
• Docket Number: (No. 11864.)
• Citation: 130 S.E. 751
• Court: South Carolina Supreme Court
• Parties: STATE. v. Ml MS et al.

130 S.E. 751

STATE.

v.Ml MS et al.

(No. 11864.)

Supreme Court of South Carolina.

Nov. 23, 1925.

Cothran, J., dissenting.

Appeal from General Sessions Circuit Court of Sumter County; J. K. Henry, Judge.

B. C. Mims and another were convicted of assault and battery of a high and aggravat-ed nature, and they appeal.New trial granted.

The exceptions, referred to in the dissenting opinion, are as follows:

"(1) That his honor erred, it is respectfully submitted, in charging the jury as follows: 'Then you come on down the line and consider the next offense embraced, which is simple assault and battery.You want to know what that is.Simple assault and battery is an assault and battery with the weapons that nature has provided you with; no outside weapons.There may be aggravated assault and battery; that is, where a very strong man beats up a woman or little child.But the ordinary simple assault and battery is the fist and skull'—the error being that the definition of simple assault and battery given by the court is incorrect and misleading, in that it conveyed to the jury the impression that if any weapon or means was used in inflicting the battery other than the hands and person of the assailant, it, as a matter of law and of necessity, could not constitute a simple assault and battery.

"(2) That his honor erred, it is respectfully submitted, in charging the jury as follows: 'Now, the next thing he has to establish is that at the time he committed the battery or struck he was in danger of losing his own life, or saving his body from serious harm.He has to establish that by the greater weight of the evidence on the point of self-defense.I repeat: That at the time he struck he was in danger of losing his own life or of sustaining serious bodily harm from his antagonist'—said error being that the jury were given the impression that in a case of this sort a man has no right to strike, except to save his own life or prevent serious bodily harm, whereas it is respectfully submitted that a man has the right to oppose force with force, and to resist a threatened attack, or an assault with force proportioned to the force threatened against him.

"(3) His honor erred, it is respectfully submitted, in charging the jury as follows: "The next thing he has to establish is that there was no reasonably safe means left to him to avoid it; he has got to show that by the greater weight of the evidence on the question of whether or not he could have escaped.He has got to avoid—Of course, if the other man was armed, had a deadly weapon, a pistol or gun, the man would be endangering his position more by running away from it.You have to consider all these things in reaching your conclusions on that'—the error being that the jury were given the impression that a man has no right to resist an assault or a threatened battery upon his person if by running away he could avoid it, whereas, it is respectfully submitted that in assault and battery cases a man has the right to oppose force with force, and has the right to strike one who is about to strike him, without playing the part of a coward and running away.He is only bound to retreat to avoid taking human life, and, short of that, has the right to stand his ground and resist a threatened attack.

"(4) His honor erred in charging the jury, it is respectfully submitted, as follows: 'He has got to show you that a necessity was upon him at the time he struck, not after, not necessarily a long time before it, but at the time, that the necessity was to save his life or to protect himself from suffering serious bodily harm'— the error being that the jury were thereby instructed that a man did not have the right to strike another in resisting a threatened attack, except to save his life or to protect himself from suffering serious bodily harm, whereas, it is respectfully submitted that in assault and battery cases no such necessity might exist, but one has the right to oppose force with force, and to use such force as is necessary to resist a threatened attack, although before taking the life of another he must show such necessity.

"(5) That his honor erred, it is respectfully submitted, in charging the jury as follows: 'If you should find from the evidence in this case that, had the prosecuting witness died, it would have been a case of murder, then your verdict in this case would be guilty, which would mean guilty of assault and battery with intent to kill and murder.Or you will have to consider manslaughter, as, if he had died, and under the consideration of the evidence, it had been a ease of manslaughter, then your verdict would be guilty of assault and battery of a high and aggravated nature'—the error being that the jury were given the impression that, if the prosecuting witness had died, and the defendants been guilty of manslaughter, they must be convicted of assault and battery of a high and aggravated nature, whereas one guilty of manslaughter in the event of the death of the assailed might be guilty of only a simple assault and battery, had death not resulted."

Harby, Nash & Hodges, of Sumter, for appellants.

Frank A. McLeod, Sol., and Epps & Levy, all of Sumter, for the State.

WATTS, J.The defendants were indicted upon a charge of assault and battery with intent to kill, on the person of N. L. Broughton, and were brought to trial on February 11, 1925, before his honor, Judge J. K. Henry, and a jury.The defendants were convicted of assault and battery of a high and aggravated nature, and made a motion for a new trial, which motion was overruled by the presiding judge, whereupon defendants received a sentence of the court, from which, within due time, due notice of appeal to the Supreme Court was given.

Exception 1 is as follows:

"That his honor erred, it is repectfully submitted, in charging the jury as follows: 'Then you come on down the line and consider the next offense embraced, which is simple assault and battery.You want to know what that is."Simple assault and battery" is an assault and battery with the weapons that nature has provided you with; no outside weapons.There may be aggravated assault and battery; that is where a very strong man beats up a woman or a little child.But the ordinary simple assault and battery is the fist and skull'—the error being that the definition of simple assault and battery given by the court is incorrect and misleading, in that it conveyed to the jury the impression that if any weapon or means was used in inflicting the battery other than thehands and person of the assailant, it, as a matter of law and of necessity, could not constitute a simple assault and battery."

This exception must be sustained.The jury could have found a verdict of guilty of simple assault and battery under the evidence in the case.While ordinarily an assault and battery with a weapon calculated to inflict death or serious bodily harm takes the case out of simple assault and battery, yet the jury have the night to take into consideration the threats made, if any, by the prosecutor, the size of the parties, the physical inequality of the men engaged in the fight.There was...