October 30, 2013 South Carolina Supreme Court published opinion

State v Smith

Smith was indicted for homicide by child abuse and the trial court also charged on aiding and abetting which was not a charge in the indictment. The jury convicted smith of aiding and abetting. The South Carolina court of Appeals affirmed on the ground that common law aiding and abetting applied. The Court reversed and remanded for a new trial. It held that the child abuse homicide statute, South Carolina Code 16-3-85(A) codifies two separate crimes namely a statutory offense of direct liability in (A)(1) and an aiding and abetting offense in (A)(2). Thus, common law aiding and abetting does nto apply. As (A)(2) was charged in eh indictment, charging the jury created a material variance and a new trial limited to the (A)(1) charge was ordered.

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