Citation Codes

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citation codes

Docket Number

16003

Attorney(S)

Messrs. J.A. Hutto and F. Ehrlich Thomson, of Columbia, for Appellants, cite: As to failure of trial judge to properly instruct the jury as to the law of assault and battery of a high and aggravated nature: 133 S.C. 167, 130 S.E. 747; 187 S.C. 439, 198 S.E. 1; 210 S.C. 290, 42 S.E.2d 385. As to duty on trial judge "to declare the law": 87 S.C. 532, 70 S.E. 306. As to right of a brother to go to defense of a brother in case of an assault: Clark, Criminal Law, 233. Mr. T.P. Taylor, Solicitor, of Columbia, for Respondent, cites: As to Defendant having no right to complain of trial Judge's charge when he did not request an amplification thereof: 159 S.C. 165, 156 S.E. 353. As to "serious bodily injury" being test of aggravated assault and battery: 133 S.C. 167, 130 S.E. 747; 86 S.C. 367, 68 S.E. 633. As to it being proper for trial judge not to charge the law of simple assault and battery: 151 S.C. 150, 148 S.E. 701; 159 S.C. 185, 156 S.E. 355; 162 S.C. 413; 133 S.C. 167, 130 S.C. 747; 88 S.C. 127, 70 S.E. 447; 187 S.C. 439, 198 S.E. 1. As to error in giving instructions being not reversible, unless the defendants are prejudiced thereby: 80 S.C. 376, 61 S.E. 896; 122 S.C. 286, 115 S.E. 252; 189 S.C. 281, 1 S.E.2d 190; 24 C.J.S. 1007, 1009, 1017; 131 S.C. 94, 126 S.E. 445. Messrs. J.A. Hutto and F. Ehrlich Thomson, of Columbia, for Appellants, in reply, cite: As to difference between "violent injury" and "serious bodily harm": 153 P.2d 315, 25 Cal.2d 177; 138 S.W.2d 102.

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Smart Summary

Case Summary: STATE v. GERMANY et al., Supreme Court of South Carolina, November 1, 1947 (Docket No. 16003)

Factual and Procedural Background

The defendants, C.O. Germany (alias "Buck Germany") and another, were tried at the April 1947 term of the Court of General Sessions for Richland County before Judge E.H. Henderson. The indictment contained two counts: the first charged assault and battery with intent to kill and murder, and the second charged conspiracy. The defendants were convicted on the first count (assault and battery of a high and aggravated nature) and acquitted on the second (conspiracy). They appealed their conviction to the Supreme Court of South Carolina. The appeal raised three exceptions/questions, including whether the evidence was sufficient to support the conviction, whether the trial court erred in instructing the jury about the right of a brother to defend a brother, and whether the trial court erred in defining the grades (degrees) of assault and battery.

Legal Issues Presented

Whether the trial court erred in defining the grades of assault and battery in its charge to the jury (specifically, use of the term "violent injury" where "serious" was appropriate).
Whether the jury instructions regarding the right of a brother to defend a brother from an assault and battery were erroneous or prejudicial to appellants.
Whether the evidence was sufficient to warrant the conviction for assault and battery of a high and aggravated nature.

Arguments of the Parties

Appellants' Arguments

The trial judge failed properly to instruct the jury as to the law governing assault and battery of a high and aggravated nature (citing several South Carolina authorities).
The trial judge had a duty "to declare the law" to the jury (citation provided).
The appellants relied on an authority addressing the right of a brother to go to the defense of a brother in case of an assault (Clark, Criminal Law).
In reply, appellants cited authorities addressing the difference between "violent injury" and "serious bodily harm" (California and other authorities) to support their complaint about the mistaken word used in the charge.

Respondent's (State's) Arguments

The defendants cannot complain of the trial judge's charge when they did not request an amplification of the charge (citations to South Carolina decisions).
"Serious bodily injury" is the correct test for aggravated assault and battery (citations cited in support).
It may be proper for a trial judge not to charge the law of simple assault and battery in certain circumstances (authorities cited).
Error in giving instructions is not reversible unless the defendants were prejudiced by the error (authorities and secondary sources cited).

Table of Precedents Cited

Precedent (Citation as Appears in Opinion)	Rule or Principle Cited For (as stated in the opinion)	Application by the Court (how the court used or referenced it in this opinion)
State v. Jones, 133 S.C. 167, 130 S.E. 747	Defines simple assault and battery as an unlawful act of violent injury unaccompanied by circumstances of aggravation; identifies infliction of serious bodily injury as a circumstance of aggravation for high and aggravated assault and battery.	The court relied on this authority to explain the correct definitions and to show that the trial court's substitution of "violent" for "serious" departed from those definitions; used as the leading pertinent authority in the analysis.
State v. White, S.C., 44 S.E.2d 741	Rule that a defendant is not entitled to complain of a charge when no amplification was requested of the trial judge.	The court cited this authority in upholding the trial court's instruction on the right of a brother to defend a brother, noting that no request for amplification had been made.
187 S.C. 439, 198 S.E. 1	Cited by appellants/respondent in relation to failure to instruct on assault and battery of a high and aggravated nature / propriety of not charging simple assault and battery.	The opinion lists the citation among authorities submitted by counsel; the court's written analysis does not indicate it expressly applied or discussed this specific authority.
210 S.C. 290, 42 S.E.2d 385	Cited by appellants regarding trial judge's instruction on assault and battery of a high and aggravated nature.	The opinion records the citation in counsel's brief; the court's analysis does not specifically reference application of this authority.
87 S.C. 532, 70 S.E. 306	Cited by appellants on the duty of the trial judge "to declare the law."	The opinion records the citation in counsel's brief; the court's analysis does not specifically reference application of this authority.
159 S.C. 165, 156 S.E. 353	Cited by respondent for the proposition that a defendant cannot complain of the charge when he did not request amplification.	The court cited the general principle (and State v. White) concerning failure to request amplification; it did not explicitly discuss this specific citation in detail, but applied the general rule to the right-of-brother instruction.
86 S.C. 367, 68 S.E. 633	Cited by respondent regarding "serious bodily injury" as the test for aggravated assault and battery.	Included among authorities listed by respondent; the opinion relied primarily on State v. Jones for definition and did not expressly apply this specific citation in its discussion.
151 S.C. 150, 148 S.E. 701	Cited by respondent as authority that a trial judge need not always charge the law of simple assault and battery.	The court referenced the general argument by the State that a charge on simple assault might not be required under conclusive evidence of a higher degree; the court rejected that argument but did not specifically analyze this citation.
159 S.C. 185, 156 S.E. 355	Also cited by respondent concerning propriety of not charging simple assault and battery.	Listed in counsel's citations; the opinion does not indicate the court applied this specific authority.
162 S.C. 413	Cited by respondent in the group of authorities on not charging simple assault and battery.	The opinion lists the citation in counsel's brief; no explicit application in the court's analysis is stated.
88 S.C. 127, 70 S.E. 447	Cited by respondent regarding the propriety of not charging simple assault and battery.	The opinion records the citation among those cited by counsel; the court does not indicate it applied this specific case in its reasoning.
80 S.C. 376, 61 S.E. 896	Cited by respondent for the proposition that error in giving instructions is not reversible unless the defendants were prejudiced thereby.	The court considered the charge as a whole and concluded it could not say with confidence that no prejudice resulted; the opinion did not analyze this specific citation but applied the general prejudice principle in determining reversal was required.
122 S.C. 286, 115 S.E. 252	Cited by respondent concerning the non-reversibility of instructional error absent prejudice.	Cited in counsel's brief; the opinion discussed the prejudice standard but did not specifically apply this citation in detail.
189 S.C. 281, 1 S.E.2d 190	Cited by respondent in relation to reversibility/prejudice doctrine.	Included in counsel's citations; the court's analysis referred to the prejudice inquiry but did not discuss this particular citation.
131 S.C. 94, 126 S.E. 445	Cited by respondent in support of the non-reversibility principle unless prejudice shown.	Listed by counsel; no specific application by the court is indicated in the opinion text.
24 C.J.S. 1007, 1009, 1017	Secondary authority cited by respondent on reversibility and prejudice.	Cited by counsel; the court's opinion does not indicate any direct reliance on or analysis of these entries beyond noting the general doctrinal point.
153 P.2d 315, 25 Cal.2d 177	Cited by appellants in reply on the difference between "violent injury" and "serious bodily harm."	The reply citation is recorded in counsel's filings; the court adopted the distinction in its analysis (noting that "violent" was used inadvertently and that "serious" would have been appropriate), but the opinion does not explicitly analyze this particular out-of-state decision.
138 S.W.2d 102	Cited by appellants in reply on the same distinction.	Listed in counsel's reply; the opinion acknowledged the conceptual distinction but did not explicitly apply this specific citation.

Court's Reasoning and Analysis

The court considered the three exceptions in inverse order of the appellants' presentation and analyzed each point as follows.

Sufficiency of the Evidence

The court observed there was no direct evidence that the defendants used a weapon, but found the circumstances were sufficient to sustain an inference that more than fists were used. The attending physician's opinion was noted: the facial wounds could not have been caused by fists alone. The prosecutor's disablement and hospitalization were also relevant circumstances. Although the court stated the evidence was sufficient to justify the jury's verdict, it declined to recount the evidence further because a new jury trial would be the proper forum for factual determinations.

Right of a Brother to Defend a Brother

The court held that the jury could not have been misled to the appellants' prejudice by the instructions on this subject. The court did not find it necessary to quote the charge or cite authorities at length on this point. It emphasized that appellants made no request for amplification of this or any other portion of the instructions and cited State v. White in support of the rule that a defendant who fails to request amplification cannot complain on appeal.

Definitions and Grades of Assault and Battery (Primary Error Identified)

The court identified a specific passage in the trial judge's instructions where the judge instructed the jury to consider "the infliction of violent injury" as an example of an aggravating circumstance. The court concluded that the trial judge had apparently used the word "violent" inadvertently in place of "serious." The court explained the legal importance of the choice of words: while a simple assault may properly be described as violent, the concept of "violence" does not necessarily connote "serious bodily injury," which is the aggravating element that distinguishes assault and battery of a high and aggravated nature.

Relying on State v. Jones (133 S.C. 167, 130 S.E. 747) as the leading authority, the court reiterated that the definitions there distinguish simple assault and battery (an unlawful act of violent injury unaccompanied by aggravation) from assault and battery of a high and aggravated nature, where the infliction of serious bodily injury is a circumstance of aggravation. Because the trial court's instruction used "violent" where "serious" was required, the charge departed from the definitions established by authority.

The court reviewed the charge as a whole (noting that such a review is always required to determine prejudicial error) and concluded the inadvertent wording was not offset by other instructions. Because the court could not say with confidence that the error did not prejudice the appellants, reversal was required on this ground.

The court also addressed the State's contention that the evidence so conclusively established the higher degree of crime that instructions on simple assault were unnecessary. The court rejected this argument, reasoning that such a holding would improperly invade the province of the jury to determine facts and the degree of the offense under the evidence presented.

Holding and Implications

REVERSED AND REMANDED FOR NEW TRIAL.

Direct effect: The conviction of appellants for assault and battery of a high and aggravated nature was reversed, and the case was remanded for a new jury trial.

Broader implications: The opinion identified and applied established law distinguishing "violent" conduct from "serious bodily injury" as the aggravating element that elevates a simple assault to one of a "high and aggravated nature," citing State v. Jones. The court found that an inadvertent substitution of wording in an instruction (using "violent" instead of "serious") constituted an uncorrected departure from controlling definitions sufficient to require reversal when prejudice could not be confidently excluded. The opinion did not announce a new rule of law; it applied existing authorities and standards (including the rule that failure to request amplification limits appellate complaint).

Judges BAKER, CJ., and FISHBURNE, TAYLOR and OXNER, JJ., concurred.

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STATE v. GERMANY ET AL.

November 1, 1947.

STUKES, J.:

The appellants were convicted of assault and battery of a high and aggravated nature at the April, 1947, term of the Court of General Sessions for Richland County upon an indictment which charged upon the first count assault and battery with intent to kill and murder, and the second count charged conspiracy. They were acquitted upon the second count.

The appeal is upon exceptions which raise three questions, the last of which is whether the evidence was sufficient to warrant the conviction. There was no direct evidence of the use by the defendants of a weapon; but the circumstances were ample to sustain the inference that more was used than the fists of the assailants, and the opinion of the attending physician was that the facial wounds of the prosecutor could not have been caused by fists alone. The disablement and hospitalization were circumstances in themselves. In view of the necessity of a new trial by jury, who will be the arbiters of the facts, the evidence will not be further recounted. We think it was sufficient to justify the verdict found.

In further inverse order, we consider the second question presented by appellants. It imputes error in the charge with respect to the right of brother to defend brother from an assault and battery. We think that the jury could not have been misled to appellants' prejudice by the instruction on this subject, as urged by appellants. There is no need to quote the charge or cite authorities upon the point. There was no request for amplification of this, or any other, portion of the instructions. See State v. White, S.C. 44 S.E.2d 741.

The remaining question for consideration, the first in the order of their argument, presents the proposition that the court erred in defining to the jury the grades of assault and battery. The alleged error is contained in the following excerpt from the instructions: "You must decide from the testimony whether or not there were aggravating circumstances. As examples of aggravating circumstances may be mentioned the infliction of violent injury, and many other matters may be considered by the jury, in order to determine whether or not an assault and battery, if you find one was made, was under aggravating circumstances."

The word "violent" was apparently used inadvertently in place of the word "serious." Had the latter word (serious) been used instead, the instruction would have been unobjectionable in this feature. A simple assault and battery may be said to be violent. Violence does not necessarily import serious injury. Our leading pertinent authority is State v. Jones, 133 S.C. 167, 130 S.E. 747, where simple assault and battery is defined as an unlawful act of violent injury unaccompanied by circumstances of aggravation; and in the definition of assault and battery of a high and aggravated nature infliction of serious bodily injury is referred to as a circumstance of aggravation. The instruction complained of departed from these definitions.

The charge has been considered as a whole, which is always necessary in order to determine whether there was prejudicial error, and we do not find that the mistake which has been mentioned was offset by other instructions. Under these circumstances it cannot be said with confidence that no prejudice resulted to appellants from the error. In this connection the State contends that the evidence conclusively established a higher degree of crime than simple assault and battery so that law relating to it need not have been charged, with which we do not agree. Such holding would, we think, involve invasion of the province of the jury under the facts adduced.

Reversed and remanded for new trial.

BAKER, CJ., and FISHBURNE, TAYLOR and OXNER, JJ., concur.

STATE v. GERMANY et al