State v. Sutton, 2895.
Decision Date | 26 October 1998 |
Docket Number | No. 2895.,2895. |
Citation | 508 S.E.2d 41,333 S.C. 192 |
Parties | The STATE, Respondent, v. Michael SUTTON, Appellant. |
Court | South 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.
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)
( ); State v. Hinson, 253 S.C. 607, 611, 172 S.E.2d 548, 550 (1970) ( ); S.C.Code Ann. § 16-3-10 (1985) ( ); People v. Parrish, 87 Cal.App.2d 853, 197 P.2d 804, 806 (Cal.Dist.Ct.App.1948) (); 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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...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......
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State v. Sutton
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