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In State v. White, decided last week, the SC Court of Appeals reversed a conviction for assault and battery of a high and aggravated nature and possession of a weapon during the commission of a violent crime, because the trial court refused to give jury instructions on two inconsistent defenses to assault charges.

Defenses to assault charges in SC include self-defense and the defense of accident, but can both defenses be true? Self-defense is an intentional act, while accident is necessarily unintentional

The Court of Appeals held that, where there is evidence that supports both defenses, the trial court must instruct the jurors that they can acquit the defendant based on either defense.


At White’s trial, there was conflicting testimony that could have resulted in an acquittal based on self-defense or accident.

During White’s testimony, he testified that, as he was walking home, someone punched him in the head from behind. At first, he testified that he did not know who it was, and he swung his arm around, holding a knife, instinctively and did not mean to cut the attacker’s throat.

Later, White also testified that he knew who the attacker was, that he knew that the attacker had knives and that he was defending himself.

The trial judge noted, correctly, that the two defenses can’t happen at the same time – you can either accidentally cut a person’s throat or you can intentionally cut a person’s throat in self-defense, but not both.

Defenses to Assault Charges – When Must the Court Charge the Jury on Self-Defense?

Any time that there is evidence of self-defense at trial, the court must instruct the jurors on the elements of self-defense and instruct them to acquit the defendant if they find the defendant was acting in self-defense.

It doesn’t matter if the trial judge believes it was self-defense – if there is evidence of self-defense, the court must give the jury instruction. What are the elements of self-defense?

Although White’s trial judge apparently didn’t believe him, there was testimony that supported each of the elements of self-defense:

  • The defendant was without fault in bringing on the difficulty;
  • The defendant believed he was in danger of death or serious bodily injury or actually was in danger of death or serious bodily injury;
  • A reasonable person would have believed that they were in danger of death or serious bodily injury; and
  • There was no other reasonable way for the defendant to avoid the danger.

Whether the evidence is credible or incredible, the court must charge self-defense if the testimony supports it.

There is No Duty to Retreat in SC

The Court found that there was testimony to support the common-law elements of self-defense.

I assume that it was not mentioned in the appeal because the trial lawyer did not argue it at trial, but there is no longer a duty to retreat in SC if you are attacked in a place where you have a right to be.

Although most people think of SC’s “stand your ground” law as applying when a person is breaking into your home or car, SC Code Section 16-11-420 (C) also does away with the duty to retreat no matter where you are if you are in a place where you have a right to be – walking down the street, at the mall, on the beach, it doesn’t matter:

(C) A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another person or to prevent the commission of a violent crime as defined in Section 16-1-60.

If you are walking down the street, someone punches you in the head from behind, and you are charged with assault and battery, the court should not instruct the jurors that they should consider whether you should have retreated before defending yourself…

What if There are Conflicting Defenses to Assault Charges?

If there is any evidence to support each element of self-defense, the court must instruct the jurors on self-defense.

If there is any evidence to support the defense of accident, the court must instruct the jurors on accident.

Although the two defenses may be mutually exclusive, the decision as to what happened is not up to the trial judge – the jurors must decide what happened and what the verdict must be based on the testimony and evidence that was presented.

Whether it is a good idea for a defendant to testify that a stabbing was an accident and then reverse himself and testify that he acted in self-defense is something else, though. Although the jurors could acquit on either theory, they know that the defendant was not being truthful because his testimony changed.

In many trials, whether the verdict is guilty or an acquittal will come down to who the jurors trust – the defendant or the state’s witnesses, or, in some cases, the prosecutor or your defense attorney…


If you are facing trial for assault charges, you and your defense attorney must be prepared – your attorney must know the law, the facts of your case, the available defenses to assault charges, and how to present your defenses to both the court and the jurors.

If you have been charged with a crime in the Myrtle Beach area, call now at 843-353-3449 or contact us by email to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.

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