THE STATE OF SOUTH CAROLINA
In The Supreme Court
Cedric Chatman, Appellant.
Appeal From Richland County
James E. Brogdon, Jr., Circuit Court Judge
Opinion No. 24983
Heard June 10, 1999 - Filed August 2, 1999
AFFIRMED IN PART; REVERSED IN PART
Joseph L. Savitz, III, of S.C. Office of Appellate
Defense, of Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, and
Solicitor Warren B. Giese, all of Columbia, for
MOORE, A.J.: Appellant was convicted of voluntary
manslaughter and sentenced to 25 years, suspended upon the service of 20
years. Appellant appeals the trial court's refusal to give a jury charge on
involuntary manslaughter and accident. We affirm in part and reverse in
Tim Harris (Victim) was living with Jackie McCants who had
two children by appellant. Appellant's son told appellant he was upset
because of fighting between Victim and McCants. Approximately three
weeks later, appellant and Victim met in a parking lot. Appellant asked to
speak privately with Victim. After speaking for a few moments, appellant
and Victim began to fight. Victim pinned appellant to the ground,
apologized, let appellant up, and then began to walk away. Appellant
testified he thought the fight was over. Victim began walking to his car but
then turned around and screamed, "Let's go head up." Victim also stated
that he had something for appellant. Victim went to his car and leaned into
it while Appellant was still sitting on the ground.
Appellant's brother approached Victim. Appellant's brother and
Victim then began to fight. A third person broke up this fight and once
again Victim headed towards his car. As Victim was leaning into his car,
appellant came up behind him and grabbed him. Appellant and Victim fell
to the ground and fought for two to three minutes. Victim grabbed
appellant's testicles "real hard" while appellant had Victim in a face-to-face
"choke hold." Appellant told Victim he would let go if Victim did. After
several minutes, Victim released appellant and the fight ended. Appellant
got up and walked away but Victim did not. Victim died as a result of
asphyxiation due to manual strangulation.1
1) Did the trial court err in not instructing
the jury on involuntary manslaughter?
2) Did the trial court err in not instructing
the jury on accident?
1) Involuntary manslaughter
strangulating someone with a rope or tie.
Appellant contends the trial court erred in refusing to charge the jury
on involuntary manslaughter. We agree.
A trial court should refuse to charge a lesser-included offense only
where there is no evidence the defendant committed the lesser rather than
the greater offense. State v. Smith, 315 S.C. 547, 446 S.E.2d 411 (1994).
Involuntary manslaughter is (1) the unintentional killing of another without
malice, but while engaged in an unlawful activity not naturally tending to
cause death or great bodily harm; or (2) the unintentional killing of another
without malice, while engaged in a lawful activity with reckless disregard for
the safety of others. Bozeman v. State, 307 S.C. 172, 414 S.E.2d 144 (1996).
We think the facts of this case fit under (1) above. Appellant was
engaged in an assault and battery and, under the facts of this case, the
battery was not such that naturally tends to cause death or great bodily
harm. "An unintentional killing resulting from an unlawful assault and
battery, not of a character of itself to cause death, is involuntary
manslaughter..." 40 C.J.S. Homicide § 40 (1991). See also People v.
Johnson, 100 Ill.App.2d 13, 241 N.E.2d 584 (1968)(death resulting from blow
from fist may be involuntary manslaughter because although unlawful, a
blow to the face with hand is not likely to be attended with dangerous or
fatal consequences); State v. Cobo, 90 Utah 89, 60 P.2d 952 (1936)("the great
weight of authority is that an unintentional killing, resulting from an
unlawful assault and battery which in and of itself is not of a character to
cause death, is held to constitute involuntary manslaughter. . .")
Here, the evidence establishes that appellant was not attempting to
strangle Victim with his hands. Appellant testified that while on the ground
he and Victim were facing one another and appellant had his shoulder
pressed into Victim's neck. The doctor who performed the autopsy on Victim
testified that his medical findings were consistent with sufficient force being
applied to Victim's neck and further his findings were consistent with the
Victim and appellant being face-to-face and appellant pressing his shoulder
into Victim's neck. This is not the traditional strangulation type situation.
Appellant was not attempting to strangle Victim by placing his hands
around Victim's neck. As such, we think appellant's actions were not the
kind which would naturally tend to cause serious bodily injury or death.
Under the facts of this case, we think appellant was entitled to a charge on
Appellant contends the trial court erred in refusing to charge the jury
on accident. We disagree.
A homicide will be excusable on the ground of accident when (1) the
killing was unintentional, (2) the defendant was acting lawfully, and (3) due
care was exercised in the handling of the weapon. State v. Goodson, 312 S.C
278, 440 S.E.2d 370 (1994). A homicide is not excusable on the ground of
accident unless it appears that the defendant was acting lawfully. Arnette v
State, 306 S.C. 556, 413 S.E.2d 803 (1992); State v. McCaskill, 300 S.C. 256,
387 S.E.2d 268 (1990). Here, appellant was not acting lawfully, since he was
engaged in an assault and battery, unless he was acting in self-defense.
To establish self-defense, there must be evidence (1) appellant was
without fault in bringing on the difficulty; (2) appellant actually believed he
was in imminent danger of losing his life or sustaining serious bodily injury;
(3) a reasonably prudent person of ordinary firmness and courage would
have entertained the same belief; and (4) appellant had no other probable
means of avoiding the danger. State v. Bruno, 322 S.C. 534, 473 S.E.2d 450
Appellant testified that after he and Victim had the initial fist fight
and Victim began walking towards his car stating that he had something for
appellant, he thought Victim was retrieving a gun from his car. Appellant
stated his brother began fighting with Victim before Victim had a chance to
get anything from his car. A third person separated appellant's brother and
Victim. Appellant testified Victim then continued to Victim's car and was
bending into the car looking under the seat. Appellant stated he grabbed
Victim from behind and the two began to "tussle." He testified he never saw
Appellant was not in imminent danger when he grabbed Victim;
appellant could have left and avoided any danger; appellant was at fault in
bringing on the difficulty; and a reasonably prudent person would not have
thought he was in imminent danger. The evidence does not support that
appellant was acting in self-defense. If appellant was not acting in self
defense, then he could not have been acting lawfully and he was not entitled
to an accident charge. See State v. Goodson, 312 S.C. 278, 440 S.E.2d 370
(1994)(appellant was not entitled to accident charge because there was no
evidence appellant was acting lawfully in self defense).
AFFIRMED IN PART; REVERSED IN PART.
FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.