Opinion
12865
March 25, 1930.
Before BONHAM, J., Dorchester, October, 1928. Affirmed.
Arlee Knight was convicted of assault and battery of a high and aggravated nature, and he appeals.
The Judge's charge and appellant's exceptions were as follows:
CHARGEMr. Foreman and Gentlemen of the Jury:
Arlee Knight, the defendant in this case, is charged with — (the Court reads the indictment).
The Court: Embraced in that charge also is the charge of assault and battery of a high and aggravated nature.
An assault is the offer to do violence to the person of another in a rude, angry manner, the person being in striking distance, striking the person of another in a rude, angry and resentful manner. Assault and battery of a high and aggravated nature is an assault and battery committed upon the person of another under circumstances of aggravation. A simple assault is an assault committed upon the person of another with the hands or something that is not calculated to do him any serious bodily harm. An assault and battery of high and aggravated nature is an assault and battery committed under circumstances of aggravation, attempted and done with some article calculated to do serious bodily harm to another, to inflict injury to the person of another.
Assault and battery with intent to kill and murder is an assault and battery which is committed with malice, with malice aforethought, with malice, and with the intention to injure the other person.
In order that you may determine whether or not the defendant is guilty of this offense you are to ask yourselves, first, if the person assaulted had died would the person who committed the assault have been guilty of murder? If he would have been guilty of murder, under the facts, in the case, if the person assaulted had died, then the person committing the assault would be guilty of assault and battery with intent to kill and murder. If you conclude that if the person assaulted had died the person who committed the assault would not be guilty of murder, then ask yourselves this: If the person assaulted had died would the person who committed the assault have been guilty of manslaughter? If he would have then under these circumstances he would be guilty of assault and battery of a high and aggravated nature.
If he would not be guilty of either of these offenses as you view the facts, is he guilty of simple assault, as I have defined it to you, or not guilty of any of these offenses?
In order that you may determine from this evidence what grade of guilt, if any, attached to the defendant, you will begin by asking this: Is he guilty of assault and battery with intent to kill and murder? If this man who was assaulted had died would the defendant at the bar be guilty of murder?
What is murder? It is the killing of a human being with malice aforethought, either expressed or implied. Now malice in the definition of the law is the willful and intentional doing of a wrongful act, without just cause or excuse. That is murder. If the man assaulted had died and the person who committed the assault would have been guilty of murder; then, if the person assaulted did not die, would the man who committed the assault have been guilty of a lesser offense?
Now, as I have said, if he is not guilty of assault and battery with intent to kill and murder, is he guilty of assault and battery of a high and aggravated nature? Answer that question. Ask yourselves this question and answer it. "If the person assaulted had died would the person who committed the assault have been guilty of manslaughter?"
Manslaughter is the killing of a human being in the sudden heat of passion, upon sufficient legal provocation. There is not malice in that. Malice is absent. The law recognizes that it is done under the impulse of hot blood, that a man under the heat of sudden passion, does something that he would not have otherwise done, while the law does not excuse him entirely, it goes so far as to say that the grade of the offense is not as great as when it is done with malice, provided, of course, that the sudden heat of passion is aroused by sufficient legal provocation. Not any sort of provocation — legal provocation. A man may curse you in the most offensive manner, but the law does not look upon that as a legal provocation. But, if a man slap your face, or spit on you, handles you rudely and offensively, and under the impulse of the sudden rush of blood to the brain which follows this insult to the manhood of a strong, red-blooded man, you strike, the law says you are not wholly excusable, but in view of the weakness of human nature, the infirmities of human nature, your offense is reduced from murder to manslaughter, provided the man whom you strike is done to death.
If the defendant in this case would have been guilty of manslaughter in case the person alleged to have been assaulted had died then this defendant would be guilty of assault and battery of a high and aggravated nature, but if the defendant in this case would have been guilty of murder, in case the man alleged to have been assaulted had died, then he would be guilty of assault and battery with intent to kill and murder. If the assault had been committed and committed without circumstances of aggravation, committed with a weapon not calculated to produce serious bodily harm, with the hands, that is called the natural weapon, the weapons of nature, then your verdict would be guilty of simple assault and battery, taking into consideration all of the facts in this case.
Now something has been said about accident. He denies that he did the deed. He says that the gun was discharged in an accidental manner, inflicting this wound upon the person alleged to have been wounded.
The Court: You want me to charge on accident?
Mr. Weeks: Yes, sir.
The Court: An accident is defined under the law to be one of those things the occurrence of which would not be ordinarily anticipated. You would not ordinarily look for the thing to happen. Something that could not be expected or anticipated. Was the gun accidentally discharged without any active participation therein on the part of the defendant, and without any intention of doing harm? If there was no intent to do evil, under those circumstances, why that would be no offense, of course.
Now it has been suggested in argument that this man was resisting arrest on the part of the officers. An officer of the law has the right to arrest a person committing an offense within his view without stopping to get a warrant. If the offense is not committed in his view an officer has no right to arrest without a warrant. It is the duty of the person being arrested to submit to the authority of the officer, and if he does not submit to the authority of the officer the officer has the right to sue so much force as is necessary to effect the arrest. I tell you, further, that an officer of a corporation, a municipal corporation, has a right to call upon other officers to assist him in arresting a person violating the law. He has the right to call upon bystanders to assist him in effecting the arrest.
Now, gentlemen, the defendant is entitled to the benefit of every reasonable doubt. A reasonable doubt means just what it says, in plain words. A doubt for which you can give a reason, a sensible reason. It is not a whimsical, fanciful doubt, but a doubt for which you can give a reason; it is a solid, sound, substantial reason, and it must grow out of the evidence in the case or the lack of evidence in the case. In deciding or determining the evidence in this case you are bound by what you heard from the witness stand.
I have endeavored to give you the law governing this case, such law as in my judgment applies to this case. The facts are for you. I cannot invade your determination of the facts and you cannot trespass upon my duty to declare the law to you. But there is this difference. While you are the sole judge of the facts, and I am the sole judge of the law, if I commit error there is a higher Court to correct me. You are twelve judges of the facts.
You will write your verdict on the back of this indictment, under the word "verdict."
If you conclude that the defendant is guilty of assault and battery with intent to kill and murder, you say: "Guilty of assault and battery with intent to kill and murder," and sign your name as foreman. If you decide that the defendant is guilty of assault and battery of a high and aggravated nature, you say "Guilty of assault and battery of high and aggravated nature," and sign your name as foreman, if you decide the defendant is guilty of simple assault, you say: "Guilty of simple assault" and sign your name as foreman and if you find the defendant not guilty you say: "Not guilty" and sign your name as foreman.
EXCEPTIONS1. It was error for the Court to have charged: "In order that you may determine whether or not the defendant is guilty of this offense you are to ask yourselves, first, if the person assaulted had died would the person who committed the assault have been guilty of murder? If he would have been guilty of murder, under the facts, in the case, if the person assaulted had died, then the person committing the assault would be guilty of assault and battery with intent to kill and murder. If you conclude that if the person assaulted had died the person who committed the assault would not be guilty of murder, then ask yourselves this: If the person assaulted had died would the person who committed the assault have been guilty of manslaughter? If he would have then under these circumstances he would be guilty of assault and battery of a high and aggravated nature." The error being that in an action for assault and battery with intent to kill, the State must show that the defendant intended to kill and murder the prosecutor, either by positive evidence of a specific intent to kill, or by a presumption of such intent from the use of a deadly weapon and the Court should have so charged.
2. It was error for the trial Judge to have charged the jury as follows: "If the defendant in this case would have been guilty of manslaughter in case the person alleged to have been assaulted had died then this defendant would be guilty of assault and battery of a high and aggravated nature, but if the defendant in this case would have been guilty of murder, in case the man alleged to have been assaulted had died, then he would be guilty of assault and battery with intent to kill and murder. If the assault had been committed and committed without circumstances of aggravation, committed with a weapon not calculated to produce serious bodily harm, with the hands, what is called the natural weapon, the weapons of nature, then your verdict would be guilty of simple assault and battery, taking into consideration all of the facts in this case." The error being that such charge was to the effect if the prosecutor had died, the intent of murder was to be imputed to the prosecutor without any further proof of the real intention of the prosecutor in committing the assault, and that if the prosecutor had died, and the appellant was not guilty of murder he would have been guilty of manslaughter notwithstanding appellant's intention.
3. There was error in the entire charge as to the grades of the crime charged and the definitions thereof and was to the effect that any assault that might result in death was an assault and battery with intent to kill or an assault and battery of a high and aggravated nature, and would make appellant intend, not only the consequences that flowed from his act and those that naturally and probably flowed from them but those which possibly flowed from it but which he never intended to result.
Mr. R. Lon Weeks, for appellant, cites: Error in charge by Circuit Court: 65 S.C. 242; 21 S.C. 597.
Solicitor A.J. Hydrick, for respondent.
March 25, 1930.
The opinion of the Court was delivered by
The defendant, Arlee Knight, upon indictment was convicted in the Court of General Sessions for Dorchester County, October, 1928, on the charge of assault and battery of a high and aggravated nature, and from the sentence and judgment of the Court has appealed to this Court.
The only errors imputed to the trial Judge are those alleged with reference to his Honor's charge to the jury, and under our view of the case the exceptions require but little discussion.
The first exception has reference to his Honor's charge in regard to the count in the indictment charging assault and battery with intent to kill. Since the defendant was acquitted on this count, the alleged error is not pertinent to the appeal and need not be considered, but we may add that in our opinion the position is not well taken.
As to the errors alleged under the second and third exceptions, we deem it sufficient to state that we have carefully considered the same in connection with his Honor's entire charge and it is our opinion that his Honor, Judge Bonham, charged the law applicable to the case. If appellant desired the law charged more fully in any particular, it was his duty, through his counsel, to request that of the Court. In our opinion, the defendant has no cause for complaint.
The exceptions are overruled, and the judgment affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.