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State v. Horne

Supreme Court of South Carolina
Aug 17, 1984
282 S.C. 444 (S.C. 1984)

Summary

holding that a "person" under the South Carolina murder statute includes viable fetuses

Summary of this case from McKnight v. State

Opinion

22157

Heard May 7, 1984.

Decided August 17, 1984.

Asst. Appellate Defender William Isaac Diggs, Columbia, H.E. Bonnoitt, Jr., Georgetown for appellant.

Atty. Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., and Sr. Asst. Atty. Gen. Brian P. Gibbes, Columbia, and Sol. James O. Dunn, Conway, for respondent.


Heard May 7, 1984.

Decided Aug. 17, 1984.


Appellant, Terrance Horne, was convicted of assault and battery with intent to kill and voluntary manslaughter in connection with the stabbing of his estranged wife, which resulted in the death of an unborn full-term viable female child the wife was carrying. We affirm in part and reverse in part.

In August 1982, appellant attacked his wife, Deborah Horne, who had passed the ninth month of her pregnancy, with a knife, wounding her in the neck, arms, and abdomen. After the attack, Mrs. Horne was rushed to the Georgetown Hospital emergency room where doctors, after determining the unborn child was still alive, performed a caesarian section to save the child's life. The child was dead when removed from the mother's womb. A subsequent autopsy revealed the child died in the womb as a result of suffocation caused by the mother's loss of blood. The mother survived.

The autopsy report also indicated the child experienced normal development, and had reached the point where it was capable of separate and independent existence apart from the mother.

The first issue on appeal concerns whether an unborn child is a "person" within the statutory definition of murder found in South Carolina Code Ann., Section 16-3-10 (1976). While this Court has previously discussed the crime of infanticide, requiring proof the infant was born alive, State v. O'Neall, 79 S.C. 571, 60 S.E. 1121 (1908); State v. Collington, 259 S.C. 446, 192 S.E.2d 856 (1972), we have never addressed feticide, the killing of an unborn child.

Here, the child was the unintended victim of appellant. If there was malice in appellant's heart, he was guilty of the crime charged, it matters not whether he killed his intended victim or a third person through mistake. State v. Heyward, 197 S.C. 371, 15 S.E.2d 669 (1941). This result is sometimes described as being a function of the doctrine of "transferred intent" whereby the actor's intent to kill his intended victim is said to be transferred to his actual victim. All that is required for murder is the mental state of malice, provided by the intent to kill a human being, coupled with an act which caused the death of a human being.

In Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964), this Court determined an action for wrongful death could be maintained for a viable, unborn fetus, holding a viable child constituted a "person" even before it left its mother's womb.

It would be grossly inconsistent for us to construe a viable fetus as a "person" for the purposes of imposing civil liability while refusing to give it a similar classification in the criminal context.

This Court has the right and the duty to develop the common law of South Carolina to better serve an ever-changing society as a whole. In this regard, the criminal law has been the subject of change. State v. Mouzon, 231 S.C. 655, 99 S.E.2d 672 (1957); State v. Brooks, 277 S.C. 111, 283 S.E.2d 830 (1981). The fact this particular issue has not been raised or ruled on before does not mean we are prevented from declaring the common law as it should be. Therefore, we hold an action for homicide may be maintained in the future when the state can prove beyond a reasonable doubt the fetus involved was viable, i.e., able to live separate and apart from its mother without the aid of artificial support.

However, at the time of the stabbing, no South Carolina decision had held that killing of a viable human being in utero could constitute a criminal homicide. The criminal law whether declared by the courts or enacted by the legislature cannot be applied retroactively. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Therefore, the conviction of voluntary manslaughter must be reversed. From the date of this decision henceforth, the law of feticide shall apply in this state.

The second issue concerns whether the state proved that the crimes occurred in Georgetown County. In State v. Wharton, 263 S.C. 437, 211 S.E.2d 237 (1975), this Court said:

. . .It is not necessary in a criminal case that venue should be proved affirmatively if there is sufficient evidence from which it can be inferred. (citation omitted). Evidence of venue, though slight, is sufficient in the absence of conflicting evidence and may be proved by circumstantial as well as directed evidence.

There was slight but sufficient evidence that the crime occurred in Georgetown. The ambulance which came to get the victim was located less than two blocks away from where appellant stabbed his wife. The ambulance took the victim to the Georgetown County Hospital. There was sufficient evidence from which venue could be inferred.

Affirmed in part, reversed in part.

LITTLEJOHN, C.J., and NESS, GREGORY and HARWELL, JJ., concur.


Summaries of

State v. Horne

Supreme Court of South Carolina
Aug 17, 1984
282 S.C. 444 (S.C. 1984)

holding that a "person" under the South Carolina murder statute includes viable fetuses

Summary of this case from McKnight v. State

holding that State in future may prosecute defendant for murder of viable fetus when defendant attacks a pregnant woman with malice and in the process kills the fetus, an unintended victim

Summary of this case from State v. Fennell

holding that a viable, unborn child is a "person" within the statute defining murder as the killing of "any person"

Summary of this case from Wyche v. State

recognizing new common law offense of feticide

Summary of this case from State v. Simms

explaining the operation of transferred intent in a common-law fetal homicide scenario

Summary of this case from Com. v. Bullock

In State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), the Court determined an unborn but viable fetus is a "person" within the statutory definition of murder.

Summary of this case from State v. Ard

In State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), the South Carolina court, without discussing its power to create a new common law crime, prospectively held that the murder of a viable unborn fetus would be a crime.

Summary of this case from Meadows v. State

In State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), the Supreme Court of South Carolina held that an action for criminal homicide could be maintained for the death of a viable unborn child.

Summary of this case from State ex Rel. Atkinson v. Wilson

In State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), the court, in a brief opinion without any discussion of its power to create new common law crimes, held that the murder of a viable unborn child would henceforth be a crime.

Summary of this case from State ex Rel. Atkinson v. Wilson
Case details for

State v. Horne

Case Details

Full title:The STATE, Respondent, v. Terrance HORNE, Appellant

Court:Supreme Court of South Carolina

Date published: Aug 17, 1984

Citations

282 S.C. 444 (S.C. 1984)
319 S.E.2d 703

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