State v. Sussewell

• Decision Date: 14 February 1929
• Docket Number: 12592.
• Parties: STATE v. SUSSEWELL.
• Court: South Carolina Supreme Court

146 S.E. 697

149 S.C. 128

STATE v. SUSSEWELL.

No. 12592.

Supreme Court of South Carolina

February 14, 1929

Appeal from General Sessions Circuit Court of Greenville County; Wm H. Grimball, Judge.

Wylie Sussewell was convicted of assault and battery of a high and aggravated nature, and he appeals. Affirmed.

The presiding judge's charge and defendant's requests and exceptions were as follows:

Judge Grimball's Charge.

Mr Foreman and gentlemen of the jury, the defendant, Wylie Sussewell, is charged here by the state of South Carolina in this indictment with the violation of law. He has pleaded not guilty, and that makes the issue to be determined by you twelve men. You are the sole judges of the facts of this case, and I will now give you the rules of law to govern you in your deliberations so that, when you determine what the facts are, you apply those facts determined by you to the rules of law which I now give you and write your verdict on the back of this indictment which shall represent the truth in this case.

In the first place, when a man is charged with crime and brought into court and placed on trial, he comes into court presumed to be innocent, and that presumption remains with him throughout his trial until the state of South Carolina satisfies a jury of twelve men beyond a reasonable doubt that he is guilty. A reasonable doubt does not mean an imaginary doubt, it does not mean a fanciful doubt or a whimsical doubt, because we can have that kind of doubt about anything. A reasonable doubt means a doubt founded in reason, for which we can give a reason, and which arises out of the testimony which you have heard on the witness stand, and the state must satisfy you of the guilt of the defendant beyond a reasonable doubt.

Now he is charged in this indictment with assault and battery with intent to kill. That is defined as an unlawful act, of violent injury to the person of another with malice aforethought either express or implied, and contained in this indictment, although not actually written in so many words is the lesser crime known as assault and battery of a high aggravated nature, which is an unlawful act of violent injury to the person of another without malice, and the essential difference between the crime of assault and battery with intent to kill and assault and battery of a high and aggravated nature is that the assault and battery with intent to kill contains the element of malice and the assault and battery of high and aggravated nature is without malice. Now malice is what the law calls a term of art, and it implies a heart utterly devoid of social duty and fatally bent on mischief. We cannot look into a man's heart with a microscope and determine what is in his heart. We can only determine from a person's acts and doings and saying what is in his heart, and malice must be in the heart of a man before he may be convicted of assault and battery with intent to kill. Now, the law will imply malice from acts of gross recklessness, and it is always for the jury to determine whether or not an act of extreme recklessness or gross recklessness is such as to imply malice. For instance if you were building a house out in the country, and there was no one within 10 or 15 miles of that house, and he be up on the roof and were to cast a heavy beam off the roof, certain that no one was in 15 miles of the place, that's all right, and there is no carelessness or recklessness about that, but, if one were to be building a house in a crowded city, with numbers of people around on the streets below, and were to cast from the top of the roof that same beam, and that beam was to strike a man on the head and kill him, the law would imply malice from the act itself and call the crime murder.

Now, under the charge of assault and battery with intent to kill, I have already told you that there is also contained the charge known as assault and battery of a high and aggravated nature, which is an unlawful act of violence to the person of another without malice, and the law is this: To constitute a criminal assault and battery, and both of these charges are criminal assault and battery, to constitute a criminal assault and battery negligence must be of a higher nature than is required to establish ordinary negligence in a civil case. So I must tell you what ordinary negligence in a civil case is. Ordinary negligence means this, the failure to do what a person of ordinary care and prudence would do or the doing of what a person of ordinary care and prudence would not do. That is ordinary negligent, but that negligence is not enough to make out either assault and battery with intent to kill or assault and battery of a high and aggravated nature. The negligence to constitute a crime of either assault and battery must be of a greater degree than ordinary negligence. Now, there may be circumstances connected with the assault and battery, such as the situation of the parties, the character of the instrumentality carelessly handled, and others which may convert an act otherwise one of simple negligence into gross and reckless negligence, and justify a conviction of either assault and battery of a high and aggravated nature or of assault and battery with intent to kill. The facts of each case are entirely for the jury to determine, and, of course, there is such a thing known to the law as pure, casual accident and fortuitous, without fault on the part of any one, and, if the jury is unable to determine from the evidence whether there was recklessness or gross recklessness on the part of the defendant, proven by the state beyond a reasonable doubt, their duty would be to acquit the defendant. The state must prove beyond a reasonable doubt gross carelessness or recklessness on the part of the defendant. You must give the defendant the benefit of every reasonable doubt. He is not entitled to the benefit of any imaginary doubt or any whimsical or fanciful doubt, but he is entitled to the benefit of every reasonable doubt.

Defendant's Given Requests.

No. 2. "Before conviction can result in this case the state must show beyond all reasonable doubt that the defendant violated some law in reference to driving his car and as a result thereof the prosecutrix was injured in the way and at the time alleged in the indictment. If the jury finds that no law was violated or that no gross negligence or recklessness can be attributed to the defendant, then it is your sworn duty to write a verdict of not guilty."

3. " The mere knocking down and injuring a person by another is not of itself sufficient proof upon which to base a verdict of guilty. The state must go further than this; it must show beyond all reasonable doubt that such knocking down and injuring was due to gross negligence or wilfulness on the part of the defendant."

4. "That before a conviction can result in this case, the state must establish beyond a reasonable doubt that the defendant not only failed to use due care but that he was guilty of gross negligence and that his act of gross negligence was the proximate and direct cause of the injury complained of, the assault and battery in this case."

I charge you No. 5: "Mere simple negligence on the part of the defendant would not be sufficient to warrant you in finding the defendant guilty as charged, or guilty of any offense. It takes more than ordinary negligence to convict this defendant of the charge contained in the indictment. In a civil action it might be possible to recover damages when it is shown that ordinary negligence could be attributed to a defendant, but in a criminal action like this, the same rule does not prevail. The state must show more than mere negligence or carelessness; it must show gross or culpable negligence or recklessness before a conviction can result."

6. "If you believe that the defendant used ordinary care, was not reckless, and that the injured party (it being admitted by defendant that the prosecutrix was injured) was guilty of carelessness herself and that as a result of such carelessness she was injured, although the defendant may have been careless himself, still the defendant could not be held guilty of any offense."

I charge you that with this additional: That if you are satisfied beyond a reasonable doubt that the defendant was reckless or grossly careless, and that the injury resulted from that and as a direct cause without which the injury would not have happened, that it makes no difference whether the injured party was reckless or not; that the recklessness of the injured party is not a defense in this case against the charge brought by the state, if the state satisfies you beyond a reasonable doubt that the defendant was grossly careless or reckless. And I charge you that gross carelessness means the absence of even the slightest amount of care. It is the absence of such care as a careless and indifferent person would be expected to exercise under the circumstances surrounding the transaction.

9. "I charge you the indictment charges the defendant with maliciously committing the offense of assault and battery with intent to kill. If, therefore, you find there is no malice shown you must acquit the defendant.

Malice can not be implied or inferred from mere carelessness on the part of the defendant, if he was guilty of simple negligence or carelessness. The state must go further, it must establish beyond all reasonable doubt that malice was shown or could be implied by the existence of gross or culpable negligence or recklessness on the part of the defendant."

I charge you that as to assault and battery with intent to kill, and under that request that request only asks an acquittal as to assault and battery with intent to kill, and although no malice may be shown by the...