
    12684
    STATE v. HOWARD
    (148 S. E., 701)
    
      Messrs. Claude M. Aman, and Alfred Wallace, Jr., for appellant,
    
      
      Solicitor Randolph Murdaugh, for respondent,
    June 25, 1929.
   The opinion of the Court was delivered by

Mr. Justice Carter.

Under an indictment charging an assault and battery, with intent to kill, upon one Carrie Whaley, the defendant, Madge Howard, was tried in the Court of General Sessions for Beaufort County, at the fall term, 1928, before his Honor, Judge' W. H. Grimball, and a jury, and, having been convicted of assault and battery of a high and aggravated nature, was sentenced to imprisonment Jn the Beaufort County jail for a period of three months. Erom the verdict and sentence imposed the defendant has appealed to this Court, imputing error to his Honor, Judge Grimball, in not charging the law of simple assault and battery.

The assignment of error cannot be sustained. In the first place, the testimony in the case did not warrant the presiding Judge in submitting to the jury the question of simple assault and battery. It appears from the agreed statement printed in the transcript of record that the prosecutor was cut by the defendant seven times; that four of the wounds inflicted were stabs or cuts in .the breast, one on the shoulder, one on the arm and one on the hip; that some of these wounds were serious, and as a result of which the prosecutor was confined in the hospital for two weeks and at home for four weeks. Under this statement of facts the Court was not warranted in charging the jury as to simple assault and battery. For a full discussion of the authorities on this question and a clear statement of the rule attention is called to the opinion written by Mr. Justice Cothran in the case of State v. Jones, 133 S. C., 167, 130 S. E., 747.

Furthermore, the matter was not presented to the presiding Judge until after he had finished his charge to the jury and the jury had retired. The request came too late.

The appellant’s exception is overruled, and it is the j udgment of this Court that the judgment of the Circuit Court be affirmed.

Mr. Chill Justice Watts and Messrs. Justices Cothran, BlLasL and Stabler concur.  