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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State,Respondent,

v.

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

respondent.

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

part.

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FACTS

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

ISSUES

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?

DISCUSSION

1) Involuntary manslaughter

strangulating someone with a rope or tie.

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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

involuntary manslaughter.

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2) Accident

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

(1996).

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

a gun.

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

p.30

evidence appellant was acting lawfully in self defense).

AFFIRMED IN PART; REVERSED IN PART.

FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.

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