This is an audio case brief of State v. Fennell, 531 S.E. 2d 512 (S.C. 2000). The audio brief provides a full case analysis. However a written summary of the case is provided below.

Table of Contents


Fennell was diagnosed as suffering from paranoid schizophrenia in 1984. Fennell ‘s illness led to the loss of his job as an accountant, a divorce, and his decision to move from Columbia back to Chester County to live with his elderly mother. Fennell joined the Chester Civitan Club and was appointed to oversee its “candy box” program. In this program, he was responsible for collecting money from boxes left in stores, replenishing the candy, and making deposits. He took the job very seriously and usually performed it well.

In fall 1996, William R. Thrailkill, the owner of a home remodeling business and a Civitan Club member also involved in the candy box program, and Fennell had a dispute about an empty candy box at a local store. The argument angered and upset Fennell

At a Civitan Club meeting at a restaurant about two weeks later, neither Fennell nor Thrailkill initially appeared upset. Fennell approached Thrailkill to discuss the candy box matter again as Thrailkill, his son, and other members formed a line at the buffet. Thrailkill refused to discuss it and made a disparaging remark that angered Fennell. Fennell immediately left the room and retrieved a .38-caliber revolver from his car. Fennell strode back into the restaurant, declaring he was “going to kill that son of a bitch.” He emptied his gun at Thrailkill, striking him with five shots. Thrailkill died at a hospital two months later from complications caused by his injuries.

A stray bullet struck Elihue Armstrong, a semi-retired grocer and barber who was standing nearby, in the right arm and chest. Armstrong survived the injuries. Fennell told a psychiatrist that he did not intend to injure Armstrong.

Fennell was charged with Assault and Battery with intent (ABIK) to kill for the injury he caused Armstrong. Fennell moved for a directed verdict on the ABIK charge. He asserted that the State had failed to prove he intended to kill Armstrong, and the doctrine of transferred intent did not apply. The judge denied the motion. He was convicted on the ABIK charge.

Fennel appealed his conviction.


The issue on appeal is whether the doctrine of transferred intent is applicable when the intended victim is killed and a stray bullet injures – but does not kill – an unintended victim?


A defendant may not be convicted of a criminal offense unless the State proves beyond a reasonable doubt that he acted with the criminal intent, or mental state, required for a particular offense. The doctrine of transferred intent is a legal fiction, through which a defendants mental state with regard to his intended victim, is transferred to his unintended victim.


To apply this rule to the facts of this case, Fennell argued that the doctrine of transferred intent does not apply because any intent was “fully satisfied” by the death of Thrailkill (the intended victim); therefore, nothing was left to transfer to  Armstrong (the unintended victim). Furthermore, Fennell argued, the doctrine is inapplicable because the harm Fennell intended to inflict on Thrailkill (death) was not identical to the harm inflicted on Armstrong (injury).

But the court disagreed.

The court begun its analysis by considering Fennel’s first argument. That is the notion that his intent was fully satisfied by the death of Thrailkill (his intended victim) and therefore no intent was left to be transferred to Armstrong, he unintended victim.

There, the court reasoned that the defendant’s mental state, or mens rea, whatever it may be at the time he allegedly commits a criminal act, is contained within the defendant’s brain when he commits the act. That mental state never leaves the defendant’s brain; it is not “transferred” from the defendant’s brain to another person or place. A more apt description might be that the mental state is like a spotlight emanating from its source – the defendant’s mind – to its target – the intended victim.

Nor is that mental state in limited supply. The mental state “spotlight” is not extinguished at the moment a bullet strikes and kills the intended victim, such that there is no mental state left upon which to convict an unintended victim who also is injured or killed.

Next the court considered Fennel’s second argument. That is, the harm Fennel intended to inflict on Thrailkill, his intended victim was different from the harm he inflicted on Armstrong. He killed Thrailkill, but only injured Armstrong.

Here, the court reasoned that, a person who, acting with malice, unleashes a deadly force in an attempt to kill or injure an intended victim should anticipate that the law will require him to answer fully for his deeds when that force kills or injures an unintended victim.

This Court in several cases has held that a defendant may be found guilty of murder or manslaughter in a case of bad or mistaken aim under the doctrine of transferred intent. In the classic case, the defendant intends to kill or seriously injure one person, but misses that person and mistakenly kills another. Although the defendant did not act with malice toward the unintended victim, the defendant’s criminal intent to kill the intended victim (i.e., his mental state of malice) is transferred to the unintended victim. “If there was malice in [defendant’s] heart, he was guilty of the crime charged, it matters not whether he killed his intended victim or a third person through mistake.


To conclude, the court held that that the doctrine of transferred intent may be used to convict a Fennel of ABIK when the he kills the intended victim and also injures an unintended victim.

Fennell’s conviction was therefore affirmed.

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