State v. Sutton, 2895.

Decision Date26 October 1998
Docket NumberNo. 2895.,2895.
Citation508 S.E.2d 41,333 S.C. 192
PartiesThe STATE, Respondent, v. Michael SUTTON, Appellant.
CourtSouth Carolina Court of Appeals

Assistant Appellate Defender M. Anne Pearce, of S.C. Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General G. Robert DeLoach, III, of Office of the Attorney General, of Columbia; and Solicitor Dudley Saleeby, Jr., of Florence, for respondent.

GOOLSBY, Judge:

Michael Sutton appeals his convictions and sentences for assault and battery with intent to kill, attempted murder, and possession of a firearm during the commission of a violent crime. The dispositive question on appeal concerns whether, under the facts of this case, a prosecution will lie for both assault and battery with intent to kill and attempted murder. We affirm in part and vacate in part.

On December 22, 1994, Sutton shot Dennis Thomas three times in a Florence County nightclub. Thomas died over a year and a day later on January 22, 1996.

At trial, Sutton moved for a directed verdict. He argued assault and battery with intent to kill and attempted murder were the same offense and to convict him of both offenses in this case would be to convict him twice for the same criminal act. The trial court denied the motion. Following his conviction, the trial court sentenced Sutton to a twenty-year term for assault and battery with intent to kill, to a concurrent life term for attempted murder, and to a consecutive five-year term for the possession of a firearm offense.

We agree with Sutton. Where, as here, there is evidence the defendant unlawfully shot and wounded another person with malice aforethought, either express or implied, and the person did not die within a year and a day after the wounds were inflicted so that there is a conclusive presumption the wounds did not cause the death, the offense is not attempted murder but is assault and battery with intent to kill. In South Carolina, the offense of assault and battery with intent to kill embraces the whole of attempted murder under such circumstances. See State v. Foust, 325 S.C. 12, 15, 479 S.E.2d 50, 51 (1996)

(quoting State v. Jones, 133 S.C. 167, 179-180, 130 S.E. 747, 751 (1925), as defining assault and battery with intent to kill as having "all the elements of murder except the actual death of the person assaulted" and requiring the intent to kill to be accompanied by malice); State v. Hinson, 253 S.C. 607, 611, 172 S.E.2d 548, 550 (1970) (defining assault and battery with intent to kill as "an unlawful act of violent nature to the person of another with malice aforethought, either express or implied"); S.C.Code Ann. § 16-3-10 (1985) (defining murder as "the killing of any person with malice aforethought, either express or implied"); People v. Parrish, 87 Cal.App.2d 853, 197 P.2d 804, 806 (Cal.Dist.Ct.App.1948) ("The essential elements required for proof of the crime of attempted murder are a(1) specific intent to commit the crime, and (2) a direct ineffectual act done toward its commission."); William S. McAninch & W. Gaston Fairey, The Criminal Law of South Carolina 354 (3d ed. 1996) (the elements of an attempt crime are a specific intent to commit a criminal offense and an act in furtherance of that intent that falls short of its ultimate execution); Jeffrey F. Ghent, Annotation, ...

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4 cases
  • State v. Reddick, 3448.
    • United States
    • South Carolina Court of Appeals
    • February 19, 2002
  • State v. Hill
    • United States
    • South Carolina Supreme Court
    • September 13, 2004
    ...We agree. In State v. Sutton, the Court of Appeals held attempted murder is not a recognized offense in South Carolina. 333 S.C. 192, 194, 508 S.E.2d 41, 42 (Ct.App.1998). This decision was filed October 26, 1998, and we granted certiorari on July 8, 1999. Appellant's trial commenced Februa......
  • State v. Sutton
    • United States
    • South Carolina Supreme Court
    • May 15, 2000
    ...for respondent. MOORE, Justice: The Court of Appeals vacated respondent's attempted murder conviction and sentence. State v. Sutton, 333 S.C. 192, 508 S.E.2d 41 (Ct.App.1998). We granted the State a writ of certiorari to review the Court of Appeals' decision. We affirm as FACTS On December ......
  • State v. Brown, 2894.
    • United States
    • South Carolina Court of Appeals
    • October 26, 1998
1 books & journal articles
  • The year-and-a-day rule: a common law vestige that has outlived its purpose.
    • United States
    • Jones Law Review Vol. 8 No. 1, January 2004
    • January 1, 2004
    ...proving causation under such circumstances, the year-and-a-day rule should be applied as a conclusive presumption). (17) State v. Sutton, 333 S.C. 192, 508 S.E. 2d 41 (S.C. App. (18) Howard v. State, 24 Ala. App. 512, 515, 137 So. 532, 534 (1931). (19) Key v. State at *1; see text accompany......

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