Opinion
9889
January 26, 1918.
Before WILSON, J., Edgefield, Spring term, 1917. Affirmed.
John Ernest Abney was convicted of malicious mischief, and he appeals.
Mr. S.M. Smith, for appellant, cites: As to wilfulness and malice: Crim. Code, sec. 222; 88 S.C. 238.
Solicitor Geo. Bell Timmerman and Mr. B.E. Nicholson, for State, respondent.
January 26, 1918. The opinion of the Court was delivered by
The defendant was tried at the March, 1917, term of Court of General Sessions for said county and State, upon an indictment containing two counts, one for an assault, the other for malicious mischief or injury. He was acquitted on the first and convicted on the second count. Before being sentenced defendant's attorney made a motion in arrest of judgment on the second count, which motion was refused, and sentence was imposed. Upon notice and exceptions duly given and made the cause is before this Court on appeal.
Argument: While there are three exceptions, we think they can, with propriety, be discussed under one general head. It will be noticed by the first count of the indictment the defendant is charged with a certain automobile in making an assault on one Mr. Mims, by attempting and offering to strike another automobile in which the said Mims was riding, intending thereby to injure, wound and illtreat him, the said Mr. Mims. The jury's verdict vindicated him of such charge, and it is submitted that, such being the case, the props and foundation of the second charge, the malicious injury or mischief, must fall to the ground, because if, as found by the jury, there was no assault, to say nothing of a battery, or an attempt to wound or to injure or do injury to Mr. Mims, how could there be any ground in law or fact or justification for finding or saying that the defendant wilfully, unlawfully and maliciously did injury to the automobile in which Mr. Mims was riding, by causing the latter to turn his automobile in a ditch?
The evidence in the case might well have supported a verdict of guilty on both counts in the indictment. While the verdict is illogical, its want of consistency is favorable to the appellant, and not prejudicial, and the appellant cannot complain.
If a reasonably prudent man would have deemed it necessary to drive his car into a dangerous place to escape a still more dangerous collision with the appellant, then the appellant is responsible for the act of Mr. Mims, which he has rendered necessary.
It was the natural consequence of appellant's conduct. Now, whether the necessity existed or not was a question for the jury.
The judgment is affirmed.