State v. Sussewell , 149 S.C. 128 ( 1929 )

The defendant was tried under an indictment charging him with assault and battery with intent to kill and murder, and was convicted of the lesser offense (or grade) of assault and battery of a high and aggravated nature. The sentence was from two to four years' imprisonment in the penitentiary or upon the public works.

The indictment grew out of a collision between the prosecutrix, Miss Asbury, and an automobile driven by the defendant upon a prominent street in the City of Greenville.

The locus may be thus described: McBee Avenue runs practically east and west; Richardson Street, north and south, and terminates at McBee Avenue, at right angle with McBee Avenue; the First Baptist Church fronts on McBee Avenue, one block from Main Street, and faces the point of the termination of Richardson Street; it is in a direct line with what would be an extension of Richardson Street if it did not terminate at McBee Avenue; as aptly described by counsel for the appellant, the situation may be compared to the capital letter T, the vertical stem representing Richardson Street, and the horizontal cross-piece McBee Avenue, the church being located opposite the point of junction.

The accident happened on Sunday, May 1, 1927, about 11 a.m., just after Sunday School, which Miss Asbury had attended, had dissolved. At that time automobiles were parked on both sides of McBee Avenue, making it necessary for cars using McBee Avenue, going to and from Main Street, to be driven practically in the center of the avenue. Miss Asbury left the church, descending the high stairway to the pavement, and then proceeded directly to cross McBee Avenue for the purpose of entering Richardson Street to return to her home; she passed between cars which were parked along the south pavement, and which to some extent obscured her vision in the direction of Main Street; she observed a car approaching from her left, going toward Main Street; the driver of that car slowed down and motioned to her to proceed, which she did; she did not look to herright in the direction of Main Street, from which the defendant's car was being driven; she did not observe its approach until it was practically upon her; the collision occurred; and she was badly hurt. There was evidence tending to show that the defendant was driving in the middle of the street, and at the rate of about 35 miles an hour; he slowed up his car after the collision, but speeded up and later left the State, being captured in a distant city.

I. Various exceptions raise the point in different phases that the contributory negligence or willfulness of the assaulted party is a complete defense to the criminal prosecution. Such is not the law.

In 29 C.J., 1155, it is said:

"The contributory negligence of the person killed, although it may be a defense to an action for a private injury resulting from homicide does not constitute a defense to a prosecution for homicide." The same rule, in reason, would apply in prosecutions of the present character. State v.Oakley, 176 N.C. 755, 97 S.E., 616; State v. Weisengoff,85 W. Va., 271, 101 S.E., 450; State v. Moore,129 Iowa, 514, 106 N.W., 16; Held v. Com., 183 Ky., 209,208 S.W., 772; State v. Elliott, 94 N.J. Law, 76, 110 A., 135;Lauterbach v. State, 132 Tenn., 603, 179 S.W. 130; Statev. McIver, 175 N.C. 761, 94 S.E., 682; State v. Campbell,82 Conn., 671, 74 A., 927, 135 Am. St. Rep., 293, 18 Ann. Cas., 236; Schultz v. State, 89 Neb. 34,130 N.W., 972, 33 L.R.A. (N.S.), 403, Ann. Cas., 1912-C, 495, 21 A. E. Enc. L., 195; State v. Gray, 180 N.C. 697,104 S.E., 647; 2 R.C.L., 1213.

In State v. Hanahan, 111 S.C. 58, 96 S.E., 667, in an opinion by the present Chief Justice, it was said:

"In no event is contributory negligence a defense to an indictment for murder or manslaughter or any criminal offense."

II. The defendant submitted the following request to charge, which was refused:

"You are to weigh carefully the injured person's conduct at time of the collision, and if you find that her conduct was the proximate cause of her injuries, then this would exculpate the defendant and it would be your duty to acquit him."

I think that this request should have been given, and that refusal was reversible error.

It is unquestionably true that the defendant cannot be held guilty of the result of his alleged criminal carelessness, unless it be shown to have been the proximate, or at least a proximate, cause of the result; and, while the contributory negligence of the person injured cannot be considered as a defense to the charge, it may be and should be considered in determining the vital question of the proximate character of the defendant's act.

In 29 C.J., 115, it is said:

"The negligence * * * must be the proximate cause of the homicide."

In State v. Oakley, 176 N.C. 755, 97 S.E., 616, the Court said:

"The conduct of the deceased, [in a case involving injury by collision with an automobile. I interpolate], if amounting to contributory negligence, is no defense to the charge of involuntary manslaughter. [Citing authorities.] It is, however,material and relevant to the extent that it bears on thequestion of the negligence of the defendant" — citing Statev. Campbell, 82 Conn., 671, 74 A., 927, 135 Am. St. Rep., 293, 18 Ann. Cas., 236.

In the Campbell case the Court said:

"The Court properly said to the jury that the State must clearly show that the deceased's death was the direct result of the defendant's negligence, but that the injured man's conduct became material only as it bore upon the question of such negligence of the accused, and that if the culpable negligence of the accused was the cause of Mr. Morgan's death, the accused was responsible under the criminal law whether Mr. Morgan's failure to use due care contributed to his injury or not."

In 2 R.C.L., 1213, it is said:

"The decedent's behavior is admissible in evidence, and may have a material bearing upon the question of the defendant's guilt, but if the culpable negligence of the latter is found to be the cause of the death, he is criminally responsible whether the decedent's failure to use due care or not."

III. It would seem that under the case of State v. Knox,98 S.C. 114, 82 S.E., 278 (with the righteousness of the decision in which I personally am not at all enthusiastic), the defendant was entitled to have submitted to the jury the question of simple assault and battery which was specifically excluded by his Honor, the Circuit Judge. See, State v.Jones, 133 S.C. 167, 130 S.E., 747.

The defendant was convicted of assault and battery of a high and aggravated nature; that necessarily excluded the finding of malice or recklessness equivalent to malice; logically, the verdict, upon its face, included a finding of gross negligence. Such a verdict has been frequently assimilated to a verdict of manslaughter in a case of homicide, and in the case of State v. Davis, 128 S.C. 265; 122 S.E., 770, it was held that a verdict of manslaughter predicated upon simple negligence cannot stand. There was evidence in the case tending to show that the defendant was guilty of nothing more heinous than simple negligence; that he was forced into the middle of the street by the parked cars, was traveling at a moderate rate of speed; and that he did not see Miss Asbury, as she did not see him, in time to avoid the collision. It is true that there was evidence opposing this view, but it is not the province of this Court to determine that issue of fact; the jury may have taken the defendant's side of the issue: we do not know. If they did, and placed the harshest construction upon his conduct, they may have concluded that he was guilty only of simple negligence. The logical result of such conclusion would have been that the defendant was not liable to conviction of a more serious offense than simple assault and battery; but, under the charge specifically excluding the possibility of such a verdict, there was nothing left for them to do but, upon a finding of simple negligence, to convict the defendant of the higher grade of assault and battery of a high and aggravated nature.

I think, therefore, that the judgment should be reversed and a new trial ordered.