B. The Act

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

B. The Act

1. Voluntary Nature of the Act; Omissions; the Act of Possession

a. Voluntary Nature of the Act

Every criminal offense involves either the commission of an act or an omission, which is a failure to fulfill a legal duty to act. "The law does not concern itself with mere guilty intention, unconnected with an overt act." State v. Quick, 199 S.C. 256, 258-59, 19 S.E.2d 101, 102 (1942). A defendant need not commit the act himself; his encouraging a confederate will suffice. State v. Jennings, 335 S.C. 82, 515 S.E.2d 107 (Ct. App. 1999) (pointing a firearm). See Chapter IV.E., Parties to Criminal Offenses, infra.

The act required might be complex: manipulating computer data in an embezzlement scheme; simple: hitting a person with a fist; oral: perjury or solicitation; or an omission, failing to file an income tax return. Yet all these acts and omissions must share a common characteristic for criminal liability to obtain: all must be voluntary.

Care must be taken to distinguish the voluntariness requirement of the act from whatever mental state or states are required for the particular offense. Voluntariness is not concerned with whether the act was committed intentionally, knowingly, recklessly or negligently. The only concern is whether the act was committed voluntarily. Perhaps the best approach to an understanding of this requirement is the essentially negative one of the Model Penal Code § 2.01(2) (1962) that focuses on what is not a voluntary act. Examples include a muscular reflex or convulsion and bodily movements during sleep or unconsciousness. If one were in a coma during the requisite period of time, a failure to file an income tax return would not be a voluntary omission.

The distinction between the voluntariness of the act and the mental element of the offense may be understood best by considering a strict liability offense. As was developed in the preceding section, these offenses do not have a mental component. A person may be convicted on the basis of the act alone. An actor violates the law by driving over the speed limit regardless of whether it is done intentionally, knowingly, recklessly, negligently or even in spite of the utmost care to avoid exceeding the limit. Nonetheless, the act of so driving must be voluntary. If one has an unexpected heart attack while driving and his foot involuntarily mashes the accelerator to the floor, he could not be convicted of violating the speed limit even though the offense has no mental component. The act of driving over the speed limit would not have been voluntary.

This hypothetical is sometimes distinguished from the case of one who drives, knowing he is subject to epileptic seizures at any time, has a seizure, wrecks and kills someone. Here the voluntariness of the act is found in the conscious decision to drive with knowledge of the condition which could lead to the disastrous consequences. People v. Decina, 2 N.Y.2d 133, 138 N.E.2d 799 (1956). Using analogous reasoning, courts have concluded that unconsciousness induced by voluntary intoxication is no defense. State v. Williams, 296 N.C. 693, 252 S.E.2d 739 (1979). Accord Lewis v. State, 196 Ga. 755, 27 S.E.2d 659 (1943).

Another aspect of voluntariness can be found in the defense of unconsciousness or automatism. In State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975), the Supreme Court of North Carolina recognized this as an affirmative defense, separate from the defense of insanity. This condition need not be the result of mental disease or defect, but, as in the case of insanity and other affirmative defenses, must be established by the defendant by a preponderance of the evidence. A well-reasoned dissent in Caddell argued that an act committed while unconscious was not voluntary, and because the State has the burden of proof as to all elements of the offense, once the issue of unconsciousness has been raised, the State must shoulder this burden as well. Id. at 297, 215 S.E.2d at 367 (Sharp, C.J., dissenting in part). Subsequent developments in regard to constitutional considerations of burden of proof indicate that the dissent in Caddell is correct on this point. See section Burden of Proof, infra.

The South Carolina Supreme Court discussed the defense of unconsciousness in a somewhat confusing opinion in State v. Price, 278 S.C. 266, 294 S.E.2d 426 (1982). Price is discussed in detail in Chapter VI.I., Unconsciousness. There is an annotation on unconsciousness in 27 A.L.R.4th 1067 (1984). See also LaFave, 491-97 (5th ed. 2010).

b. Omissions

While most criminal offenses involve affirmative acts, some, as suggested by the preceding subsection, are committed by a failure to act. However, criminal liability attaches to an omission only if there is a legal duty to act. A purely moral obligation will not suffice. An excellent example of this distinction is posed by the tragic death of a Ms. Kitty Genovese, an infamous event widely publicized in 1964. Some thirty-seven persons watched from their apartment windows as she was stabbed, struggled to momentary freedom, and was repeatedly caught and stabbed again. The grisly scenario unfolded over a period of at least fifteen minutes, during which not a single spectator even called the police. When the police were finally summoned, they arrived within two minutes, but by this time Ms. Genovese was dead. New York Times, March 27, 1964, at 1, col.4. Certainly any of the thirty-seven observers could have called the police without danger to himself and perhaps have saved Ms. Geovese's life. The failure to have done so is reprehensible. Yet, because there is only a moral, and not a legal, duty to take such an affirmative act, no criminal liability attaches for the omission.

In many European countries there are statutes requiring a person to render aid to another in serious danger if the aid would not entail danger to the intervener or to others; the statutes impose criminal sanctions for failure to render such assistance. Feldbrugge, Good and Bad Samaritans: A Comparative Survey of Criminal Provisions Concerning Failure to Rescue, 14 Am. J. Comp. L. 630 (1966). In the United States there is no general legal obligation to render aid to another, although several states have enacted such statutes. E.g., Mass. Gen. Laws Ann. Ch. 268, § 40 (West 1990). In the absence of such a statute, a legal duty to act may be found in certain specific situations.

The legal duty to act may be imposed by statute, e.g., S.C. Code Ann. § 12-6-4910 (2000 and Supp. 2012) (duty to file income tax); S.C. Code Ann. § 16-3-520 (2003) (duty to report any incident of fraternity hazing that has foreseeable potential to cause physical harm to another). The duty may be based on a relationship. Campbell v. Campbell, 200 S.C. 67, 73, 20 S.E.2d 237, 239 (1942) (common law duty of parent to support children). The duty may be based on contract, as in the case of a hospital employee or lifeguard, or it may be the duty of a landowner to keep premises safe. Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944) (sustaining manslaughter conviction of...