State v. Self, 16865
Decision Date | 10 May 1954 |
Docket Number | No. 16865,16865 |
Citation | 82 S.E.2d 63,225 S.C. 267 |
Court | South Carolina Supreme Court |
Parties | STATE v. SELF. |
Law, Merritt & Kirkland, Columbia, for appellant.
T. P. Taylor, Solicitor, Columbia, for respondent.
Appellant was tried and convicted in the Court of General Sessions for Richland County upon an indictment charging robbery, larceny, and assault and battery with intent to kill and was sentenced to serve fifteen years upon the robbery charge and ten years upon the assault and battery with intent to kill charge, said sentences to run concurrently.
Appellant now comes to this Court contending that there was error in the presiding Judge's charge in that he failed to charge the law applicable to 'assault and battery of a high and aggravated nature, assault and battery and simple assault.'
A review of the testimony reveals that the prosecuting witness, Sgt. Carl Vinson, then stationed at Ft. Jackson, South Carolina, in company with Appellant and one Archie Gantt were riding in and about the City of Columbia when they stopped in an outlying area and Vinson was struck from behind, knocked to the ground and relieved of his pocketbook containing approximately $250. They had been together approximately two hours and some whiskey and beer had been consumed, evidently a considerable quantity of beer by the prosecuting witness.
Where one is charged with the crime of assault and battery with intent to kill the gist of the offense is the intent, though there must also be some action in the direction of such an intent and the agency used to effect the intent may or may not be sufficient for the purpose, State v. Glover, 27 S.C. 602, 605, 4 S.E. 564. The general rule is that an indictment for a higher offense will sustain a conviction for a lower offense included in the higher. This Court in State v. Knox, 98 S.C. 114, 82 S.E. 278, 279, after stating the aforesaid rule held that it was 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.' And in State v. Jones, 133 S.C. 167, 130 S.E. 747, 751, we find that while there is no statutory definition of the offense of assault and battery in this state, that such has been divided through common usage 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. See, also, State v. Johnson, 187 S.C. 439, 198 S.E. 1.
A review of the testimony reveals the following:
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