*1 bеen plaintiff in the sum of Three damaged Thousand Dollars actual ($3,000.00), and punitive damages.
“Wherefore, plaintiff prays de- judgment against fendant for the sum of Three Thousand Dollars ($3,000- actual and .00), punitive costs and dis- damages plus bursements of this action.” allegations in our complaint, opinion,
state a cause of action for fraud and deceit in that false were made representations by appellant’s agent respondent led to the cancellation by respondent of an insurance then in policy force with the Life Equity Insurance and such Company relative to allegations with the policy defendant be relevant company may the question trial of the damages. Upon it may well be that the trial with the Judge application policies be- fore him conclude that might properly certain paragraphs stricken, should be complaint but the record before not such as to hearing Judge such action require time, at that further the of whether or not the order under review is appealable not raised and hence not before the Court.
We are of the therefore, opinion, that the Order appealed from should be affirmed and it is so ordered. JJ., and M. Oxner,
Stukes, Legge, Mann, M. Associate concur. Acting Judge, STATE, Respondent,
THE HENDERSON, v. CHRISTOPHER M.
(84 S. (2d) 626) *2 Burts, Watt, Messrs. Sam R. Sam N. Chester D. Ward, Jr., Spartanburg, Appеllant,
Messrs. Solicitor, J. Allen J. and Wright Lambright, Nash, Solicitor, Assistant Circuit, Seventh Judicial Re- spondent,
November 1954.
Stukes, Justice. was tried an upon indictment which was re- duced on first, motion of the Solicitor to two counts: rape; second, of a high aggravated nature. The convicted him second count and he has appealed.
The first stated the brief as follows: “1. Where a a defendant of but jury acquits finds him of assault and nature, can verdict be sustained as a matter of law when both the and the defendant admit- ted the the former penetration, it was accom- contending *3 consent, with force plished and without but the latter aver- it was done with ring consent and without force?” The point was not is, made timely trial and there- upon fore, not available on It should have been be- appeal. made fore the instead, issues were submitted to the a con- jury; trary was taken position at that time. Counsel for de- fendant, who had a formerly and successful long experience Solicitor, moved at the close оf the evidence for a di- rected verdict of the first count of the indict- acquittal upon refsual, ment. he moved the court to Upon reduce charge to assault and battery, was also refused. Appellant is bound his evidence; view of the he expressed cannot blow hot and cold. For the reason stated the first ground is overruled without appeal decision the merits of it. upon
The second ground appeal points prejudicial error which reversal for new trial. After the requires retired and their jury consideration re- began turned from their room and asked for additional instruc- tions with reference to assault and and a high ag- nature. The cоurt with rather gravated responded lengthy instructions, further after which the following transpired:
“The now, Court: further Anything gentlemen? “Mr. Not for the State. Lambright: “Mr. Honor, Watt: that, Your in view of those instruc- tions, we think the Court should instruct the also that if the consented, then it could not be an assault nature. Well, “The I Court: indecent liberties or familiar- charged * * * ities with femalе, without her I consent. think my covers it. Let charge record show Mr. re- your Watt quested on it I charges am of it is opinion sufficiently covered in the I which have given.”
Although covered in perhaps sufficiently general if it alone, charge, stood was entitled to clarifica- tion of the additional instructions in accord with counsel’s pertinent Without it the request. additional instructions were incomplete prejudicial appellant.
The case is reversed for trial. new Oxner Legge, concur. JJ., Taylor, J., Mann, M. M. Associate Acting Justice, dissent.
Taylor, (dissenting). Justice I that I cannot concur in the regret majority opinion. to trial brought during June, Term of General Sessions Court Spartanburg County an indictment First, three counts: containing rape; second, ravish; and, third, assault with intent to *4 of a battery nature. high aggravated During trial case, the second count was withdrawn by the first and third counts. leaving conclusion of the Upon motion testimony, was made directed verdict as to the first count which was refused. Then motion was made to rеduce the charge assault and which was also denied. The battery found jury of assault and of a battery guilty high na- aggravated verdict, ture. After the motion was made for arrest of judg- ment, and, in that, failing appellant then moved for a new trial.
The grounds upon which such motions were made are stated below and are the same except Number 9 which ap- pears in the motion for a new trial only:
“1. In that the evidence shows that the defendant was guilty of rape for the nothing, reason that the essential elements are: rape penetration accompanied force by with- out consent of the prosecutrix, and it is admitted by both the prosecutrix аnd the defendant that there was a penetra- tion; therefore, the finding jury the defendant was not guilty rape of itself a finding that the prose- cutrix consented and that the sexual relations were not ac- companied force, and there is no independent evidence of force unaccompanied by allegеd rape.
“2. In that the jury by a verdict of not to the rape has conclusively found that there was no force used defendant and that the prosecutrix con- sented to the act of. complained
“3. In that the offense of assault and battery of a high and aggravated nature was not an issue in the case after the prosecutrix and the defendant admitted penetration.
“4. In that the verdict of ‘Guilty assault and battery of a high aggravated nature’ cannot be allowed to stand under the facts of the case since the jury exonerated him of the charge of rape.
“5. In that there is no competent evidence to sustain the verdict of ‘Guilty high and aggra- vated nature.’
“6. In that the verdict of the jury contrary the law and the evidence in the case.
“7. In that the lesser crime of assault nature, under the facts of into merged the greater crime of the only issue upon which the could have found the defendant that of rape.
232
“8. In in that His Honor erred as to charging law on assault and of bаttery and high aggravated nature, since there was not to testimony warrant such charge evidence, for if the of defendant was under offense, it was that of rape.
“9. In that His in Honor erred to fol- failing charge of “It is a material of lowing requests part defendant^ show complaint the State’s case a prosecution this that request at the first the error being opportunity’, of law.” is a sound proposition denied, now comes motions being foregoing of question to this exceptions present Court upon of or not a verdict whether a be as matter can sustained nature a and aggravated high and the both the prosecutrix trial for rape law wherе such contending the prosecutrix defendant admit penetration, and will force against was accomplished penetration it was with acquiescence that contends while appellant witness. consent the prosecuting precise occasion pass not had This Court State v. heretofore, it was presented although question The case 414, 291. S. E. 413, (2d) 76 223 S. C. Floyd, recent case And the reasons. other reversed for of this 63, the latest opinion C., E.S. Self, (2d) v. S. on assault Court
nature, light upon or no little very sheds here. determination here no to relate the sordid
It useful purpose would serve occasion, but it is sufficient tes- say details and cannot be is cоntradictory timony prosecutrix in minor instances with that of appellant except reconciled the one fact that was accomplished. Appel- penetration with the that the intercourse was consent lant contended she contended it prosecutrix acquiescence the use of force and her will. through Driscoll, In State St. 138 N. Ohio 376, 378, the testified that she a cab engaged *6 driver to take her to a but instead he specificplace drove her to another her into back and forced seat without her consent and her will intercourse had with her. The driver, hand, cab on the other admitted intercourse having with the witness and contended that he drove to prosecuting at her that she made the advances and place suggestion, that such was consent. The Ohio intercourse her Su- by in its Court stated: preme opinion
“The only question determination is whether there was evidence to any tending prove accused not guilty of an guilty assault. It battery must be borne in mind thаt accused admitted in the course of his own examination while in his own testifying behalf that he had had sexual relations with the complete prosecuting witness, and that his was only defense that such intercourse consent, but, was not with her full and free his if testi- only believed, to was be also mony encouragement. or nonresistance in a сom- is a prosecution rape, Consent defense, alibi, just be; or an insanity, and, as would plete furthermore, consent would be a defense complete offenses of assault and included and assault. The de- fendant’s lecherous conduct to the leading up commission of act, all which time he during entertaining intent, criminal cannot by refinements of be reasoning its from separated complete accomplishment. The prelimi- crime, nary steps counsel for the accused con- tend amount to assault and battery, just are as much a part of the crime the final If defendant had in stages. failed his criminal reason of resistance which he purpose was un- overcome, able to there would be a foundation for a charge included and lesser offenses assault and battery and time, assault, at the but under the request proper rec- ord us be before such would tantamount to an invi- crime, tation to the with if compromise should thereto it would place thеm yield to exer- position cise the executive function commuting punishment. * * * The intercourse was not complete only proven, but without consent and,
admitted, accomplished if it was of the major guilty force, clearly defendant with he be consent would offense, accomplished by if it was while at all.” of no offense states. been followed other line of reasoning This Keith, 686, Cal. 1904, People far back as As of California stated: Court Supreme P. that to instruct refused court “It is complained with assault find defendant might the jury assault, in- and in fact commit rape, intent in the The evidence the crime charged. as to only structed If it intercourse. the sexual no doubt as admitted case *7 no offense there was consent prosecutrix, the with was it was without if crime charged; in the at all included been circumstances, it could have the under consent other, there or thing one It was but rape. nothing the offense.” reduce to tending no evidence Illinois, People Court of 1911, the Supreme And in 1005, 1007, Lеwis, stated: N. Ill. that, true under an indictment rape, is undoubtedly “It intent of an assault with be found guilty defendant may atrocious em- more crime commit higher to rape, It is how- of the lesser offense. only, elements braces all it, or that requires permits ever, where evidence in cases crime of with intent to assault convict may the jury crime rаpe. an indictment charging under rape commit * * * crime been believed had case, any the jury if In this have been warranted committed, indulging not would they as- and not an rape, committed was crime that the a doubt of the two The testimony rape. to commit intent sault with the act of sexual believed, conclusive that children, if and, if the believed that jury been complete, had intercourse the will forcibly been committed assault had this no verdict returned other have Weller, could they Mrs. These instructions simply two of rape. of guilty that than return a compro- to the jury invitation to an amounted warrant.” not would the facts verdict, which mise State, In Parrett v. 755, 760, 200 Ind. 159 N. E. when a similar Indiаna, was before the question Court of Supreme the Court stated:
“It is claimed that this instruction or no is [rape rape] erroneous, because it to find the required jury either or guilty not guilty no rape, gave jury opportunity find the defendant guilty crime attempt or the crime of assault and with in- tent. There is no evidence in this case that the shоwing appellant Parrett was an assault or committing battery upon with in- other tention than to commit the crime of her. rape upon Parrett testified her, that he had intercourse with and that she consented The thereto. sexual intercourse complained been admitted having one by only re- appellant, mained, and that was whether it took under place circum- stances which it constituted a rape.
“In evidence, the case made where the act of inter- is course admitted the defendant in his itas testimony the refusal of the court to instruct the find the might defendant of assault or assault with intent assault is not error.” takes the that the position offense graver must *8 necessarily include the minor offense; that the jury should in all cases be instructed that the defendant bemay convicted offense, of the lesser involved the necessarily graver offense, submitted, where the evidence under any view there- of, will authorize conviction of the lesser Moore v. grade, State, 151 47; 108 S. E. a Ga. and that conviction of the minor offense is even the though valid facts proven would have been sufficient to convict on the graver, they the of the any believe all right part having testimony or all of such and as testimony they disregard part saw fit.
In the instant there is no evidence to the effect that there was no penetration. testimony of both appellant is this; therefore, and the prosecutrix explicit as if the jury believed the that such was ac- penetration will, the her complished use of force and through crime was If believed his such they testimony that rape. and penetration accomplished through acquiescence cоnsent, and he could not have been or assault nature; and, if of a and dis- both, should been verdict have testimony believed a includes battery, “not guilty”. Every rape necessarily his this crime without inflicting upon one cannot commit is the legal equivalent victim a injury personal State, 749; but it 104 Ga. S. Goldin battery, that one be found may follow does nоt necessarily such and ver- testimony offense regardless lesser are of assault to stand. dict permitted Just so it is in the the crime of an part necessity integral con- clearly all the evidence murder; but where crime of act relied upon the unlawful shows that clusively in the resulting deadly weapon use of a involved to the contrary, is no evidence another, there death assault, or assault and on of the Court the failure to refuse is the Court It also proper not error. is battery, of assault and battery assault or on the question to charge child, killing for manslaughter of one in a prosecution law, where in violation of an automobile driving while clear, conclu- is convincing, evidence the overwhelming child was natural direct the killing sive that is it; there no suggestion the car striking result of 561. This is Am. Sec. Jur., principle contrary. See to cite further unnecessary is au- so that it established well thority. viewed, is under which this theory case
Regardless it controlled are all evidence adduced. сases) by (as brief there his is some doubt of Respondent argues the evidence and all inferences but reasonably penetration, are of the fact deducible therefrom conclusive that there was so, such This if being penetration, *9 accomplished penetration. force and without the consent of prosecutrix, If rape. with the consent and acquiescence of the prosecutrix,
it could be neither rape nor assault and high and aggravated nature; if juries are permitted to find otherwise, in effect may law, compromise which should not be sanctioned Courts, therefore, I am of the opinion the judgment and sentence from appealed should be reversed and set aside.
M. M. Acting Associate Justice, concurs. Mann, CARROWAY, ROY Respondent, v. CAROLINA POWER & LIGHT
COMPANY, Appellant
(84 S. (2d) 728)