Opinion
19980
March 26, 1975.
Messrs. G. Ross Anderson, Jr., Karl L. Kenyon, and William N. Epps, Jr., of Anderson, Kenyon Epps, Anderson, for Appellant, cite: As to error in charging the law to the effect that prior transactions and previous convictions may be considered by the jury for the purpose of determining credibility or believability of the Defendant: 235 S.C. 395, 111 S.E.2d 669; 186 S.C. 221, 196 S.E. 6; 208 S.C. 462, 38 S.E.2d 492; 178 S.C. 78, 182 S.E. 159; 209 S.C. 439, 40 S.E.2d 634; 151 S.C. 479, 149 S.E. 108; 214 S.C. 517, 53 S.E.2d 402; 126 S.C. 528, 120 S.E. 240. As to the Trial Judge's erring in charging the jury on assault and battery with intent to kill, assualt and battery of a high and aggravated nature, and in failing to charge the jury on the law of simple assault and battery; 220 S.C. 506, 68 S.E.2d 409; 133 S.C. 167, 130 S.E. 747. As to the Trial Judge's erring in charging the jury that "firing into a crowd with a pistol although you don't know a single person in that crowd or intentionally shooting a gun into a crowd and killing a man, the law says that is murder because malice is implied from the very recklessness and maliciousness of the act": Constitution of the State of South Carolina, Article 5, Section 26; 201 S.C. 387, 23 S.E.2d 244; 187 S.C. 58, 196 S.E. 371. As to the Trial Judge's erring in charging the law of self-defense in the manner in which it is charged in referring to and characterizing the present case as a homicide case: 87 S.C. 532, 70 S.E. 306; 249 Ind. 699, 234 N.E.2d 465; 242 Iowa 49, 43 N.W. (1d) 706, 19 A.L.R.2d 865; 227 La. 820, 80 So.2d 420; 364 Mich. 528, 111 N.W.2d 742; 186 Minn. 242, 243 N.W. 70; 51 N.J. 444, 242 A.2d 1; 104 Vt. 442, 160 A. 249. As to the Trial Judge's erring in charging the jury inconsistent theories of law which were confusing to the jury and prejudicial to the Defendant: 225 S.C. 89, 80 S.E.2d 918.
Messrs. Daniel R. McLeod, Atty. Gen., C. Tolbert Goolsby, Dep. Atty. Gen., Joseph R. Barker, Asst. Atty. Gen., and Richard P. Wilson, Staff Atty., of Columbia, for Respondent, cite: As to the Trial Court's being correct in not charging the jury on the law of simple assault and battery: 253 S.C. 607, 172 S.E.2d 548; 253 S.C. 388, 171 S.E.2d 159; 245 S.C. 362, 140 S.E.2d 597. As to self-defense not having been proven by Appellant: 202 S.C. 473, 255 S.E.2d 561, cert. denied, 320 U.S. 763, 64 S.Ct. 58, 88 L.Ed. 455. As to the charge on the burden of proof in establishing a plea of self-defense being correct: 22A C.J.S., Criminal Law, § 573; 130 S.C. 91, 124 S.E. 636. As to a lack of reversible error in charging the jury that it could consider prior transactions and previous convictions in determining credibility: 214 S.C. 517, 53 S.E.2d 402. As to a lack of reversible error in referring to the present case as a homicide: 244 N.C. 368, 93 S.E.2d 443; 6 Am. Jur.2d Assault and Battery, § 69; 243 S.C. 414, 134 S.E.2d 248. As to Appellant's exceptions not being properly before this Court: 253 S.C. 294, 170 S.E.2d 379; 253 S.C. 475, 171 S.E.2d 712; 245 S.C. 59, 138 S.E.2d 705; 242 S.C. 372, 131 S.E.2d 96; 226 S.C. 501, 85 S.E.2d 858; 238 S.C. 140, 119 S.E.2d 671; 126 S.C. 437, 120 S.E. 230; 226 S.C. 421, 85 S.E.2d 744: 230 S.C. 195, 95 S.E.2d 160; 7A South Carolina Digest, Criminal Law, Key No. 1028.
March 26, 1975.
The appellant, Michael Gene Todd, was charged in two indictments with assualt and battery with intent to kill upon Sam J. Owens and Floyd Holcombe. The pistol shootings which constituted the assault and battery grew out of the same incident and the cases were tried together.
After conviction of a lesser offense and sentence on both indictments, Todd acquired counsel now of record and filed this appeal. He submits to this Court that the trial judge erred in five particulars as relate to his charge to the jury. He further alleges that the conviction should not stand since there was insufficient evidence to support the conviction.
A review of the record reveals that none of the issues upon which Todd bases this appeal was submitted to the trial judge. At the end of the judge's charge trial counsel was given an opportunity to except to any portion of the charge or request additional instructions. Both counsel for the State and for Todd indicated no objections or requests. Counsel neither moved for a directed verdict, or for a new trial, nor challenged the sufficiency of the evidence to sustain a conviction in the court below.
In cases too numerous to cite, found in the annotation to South Carolina Code § 10-1210 (1962) and in 7A South Carolina Digest Criminal Law 847 (1971 Cum. Supp. 1973), it has been held that the failure of a defendant to object to the charge as made or to request additional instructions, when the opportunity to do so is afforded, constitutes a waiver of any right to complain of errors in the charge. Peyton v. Strickland, 262 S.C. 210, 203 S.E.2d 388 (1974).
In like manner, we have held that if a defendant fails to challenge the sufficiency of the evidence in the court below the issue may not be raised upon appeal for the first time. To hold otherwise would mean that the appellate court would be exercising original jurisdiction rather than serving as a reviewing court. State v. McCrary, 242 S.C. 506, 131 S.E.2d 687 (1963).
Affirmed.
MOSS, C.J., and LEWIS, BUSSEY and NESS, JJ., concur.