State v. Pilgrim
| Decision Date | 03 October 1995 |
| Docket Number | No. 2414,2414 |
| Citation | 465 S.E.2d 108,320 S.C. 409 |
| Parties | The STATE, Respondent, v. Willie Earl PILGRIM, Appellant. . Heard |
| Court | South Carolina Court of Appeals |
Assistant Appellate Defender Robert M. Dudek, South Carolina Office of Appellate Defense, Columbia, for appellant.
Attorney General Charles Molony Condon, Chief Deputy Attorney General Donald J. Zelenka, and Deputy Attorney General Salley W. Elliott, Columbia; and Solicitor Holman C. Gossett, Jr., Spartanburg, for respondent.
Willie Earl Pilgrim appeals from his conviction for assault and battery with intent to kill. We reverse and remand for a new trial.
On the evening of October 21, 1991, Marion Douglas Smith was attacked in the parking lot of a grocery store while he was placing his groceries in his car. Smith was hit with a hard object approximately five times, with at least two of the blows striking him in the face. Smith never saw his attacker and did not know why he had been attacked. After the attack, Smith had three limbs in casts and spent one week in the hospital. Smith had only partial use of his hands at the time of the trial.
The only evidence linking Pilgrim to the crime was the testimony of two eyewitnesses, who did not come forward until approximately ten days after the attack. At trial, one of the witnesses attempted to retract his statement identifying Pilgrim as the assailant. Pilgrim presented an alibi defense.
The trial court instructed the jury on assault and battery with intent to kill (ABIK) and the lesser included offense of assault and battery of a high and aggravated nature (ABHAN). The jury convicted Pilgrim of assault and battery with intent to kill, and the trial court sentenced him to fifteen years.
The sole issue on appeal is whether the trial court erred in its instructions to the jury. The trial court instructed the jury that Pilgrim was guilty of ABIK if the jury was satisfied that he would have been guilty of murder had the victim died from the injuries inflicted, and that Pilgrim was guilty of ABHAN if the jury was satisfied that he would have been guilty of voluntary manslaughter if the victim had died. The trial court then instructed the jury, to a limited extent, on the law of murder and manslaughter. Pilgrim contends that while the analogy between ABIK and murder is appropriate, the analogy between ABHAN and manslaughter is confusing and misleading, and effectively adds an element to the crime of ABHAN. We agree.
Assault and battery with intent to kill is often defined by comparing it to murder. See State v. Jones, 133 S.C. 167, 130 S.E. 747 (1925). Murder is "the killing of any person with malice aforethought, either express or implied." S.C.Code Ann. § 16-3-10 (1985). Thus, ABIK is typically defined as "an unlawful act of violent nature to the person of another with malice aforethought, either express or implied." State v. Hinson, 253 S.C. 607, 611, 172 S.E.2d 548, 550 (1970). However, in addition to these elements, ABIK also requires the presence of specific intent to kill. See State v. Scott, 269 S.C. 438, 237 S.E.2d 886 (1977) (); State v. Self, 225 S.C. 267, 270, 82 S.E.2d 63, 64 (1954) (); Jones, 133 S.C. at 179-80, 130 S.E. at 751 (); State v. Hilton, 284 S.C. 245, 248, 325 S.E.2d 575, 576 (Ct.App.1985) (). 2
Assault and battery of a high and aggravated nature is the unlawful act of violent injury to another accompanied by circumstances of aggravation such as the infliction of serious bodily injury, great disparity in the physical conditions of the parties, or the purposeful infliction of shame and disgrace. State v. Foxworth, 269 S.C. 496, 238 S.E.2d 172 (1977); State v. Small, 307 S.C. 92, 413 S.E.2d 870 (Ct.App.1992). ABHAN is often compared to voluntary manslaughter, with the jury being instructed that the defendant is guilty of ABHAN if he would have been guilty of voluntary manslaughter had the victim died from his injuries. Manslaughter is defined as the unlawful killing of another without malice, express or implied. See S.C.Code Ann. § 16-3-50 (Supp.1994). Voluntary manslaughter is generally described as the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation. See, e.g., State v. Lowry, 315 S.C. 396, 434 S.E.2d 272 (1993).
In this case, the trial court charged the jury as follows:
[T]he most serious form of assault and battery is that with intent to kill, and that is defined as an unlawful act of violent injury to the person of another accompanied with malice aforethought and a specific intent to kill.
Assault and battery with intent to kill contains all of the elements of murder except that the actual death of the person does not occur. So before the defendant may be convicted of assault and battery with intent to kill, you must be satisfied beyond a reasonable doubt that if the victim or the person assaulted had died as a result of those injuries sustained then the defendant would have been guilty of the crime of murder.
So in order for you to more fully understand assault and battery with intent to kill, it's necessary that I charge you to a limited extent of the offense of the crime of murder.
Now, murder is the killing of a human being with malice aforethought either expressed or implied. Malice is an essential element of the crime of murder. Malice is a term of art. It's a technical term importing wickedness and excluding just cause or legal excuse. Malice must be aforethought. Malice must exist in the mind of the accused just before and at the time of the commission of the act.
. . . . .
Now, assault and battery of a high and aggravated nature, as I have defined it for you, is the unlawful act of violent injury to the person of another accompanied by circumstances of aggravation. Some examples of circumstances of aggravation are the use of a deadly weapon, the infliction of serious bodily injury, the intent to commit a felony, a difference in sexes or a disparity in the ages or physical conditions of the parties.
Now, assault and battery of a high and aggravated nature contains all of the elements of manslaughter except the actual death of the person assaulted does not occur. Before the defendant could be found guilty and convicted of assault and battery of a high and aggravated nature, you must be satisfied beyond a reasonable doubt that if the person assaulted had died as a result of the injuries sustained the defendant would have been guilty of the crime of voluntary manslaughter.
In order for you to fully understand assault and battery of a high and aggravated nature, I will therefore charge you to a limited degree the law of manslaughter. Voluntary manslaughter is the unlawful killing of a human being without malice either expressed or implied or inferred. The distinction between murder and manslaughter is the presence of malice in murder and the absence of malice in manslaughter.
Voluntary manslaughter is defined as the killing of a human being in sudden heat of passion upon a sufficient legal provocation as would be calculated to sway the reason of an ordinary person causing him to become enraged and act upon an impulse rather than cool reflection, thus eliminating the element of malice.
Now, before the defendant could be found guilty of assault and battery of a high and aggravated nature, the jury must be satisfied beyond a reasonable doubt that if the person assaulted had died as a result of the injury sustained the defendant would have been guilty of manslaughter as I have defined it for you.
If you should conclude that the state has failed to satisfy you beyond a reasonable doubt that the defendant would have been...
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