green
Positive treatment
Quoted verbatim 5×
45.5 score
G Cite
cited 3× by 3 distinct cases ·
…the law of self-defense is the law of necessity, and the necessity relied upon must not arise out of defendant's own misconduct. accordingly, a defendant must reasonably fear death or serious bodily harm to himself at the hands of his victim.
at p. 810
⚠ not in text
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1979
2002
2026
Top citers, strongest first. 50 distinct citers.
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examined
Cited as authority (verbatim quote)
Small v. Commonwealth
the law of self-defense is the law of necessity, and the necessity relied upon must not arise out of defendant's own misconduct. accordingly, a defendant must reasonably fear death or serious bodily harm to himself at the hands of his victim.
discussed
Cited as authority (verbatim quote)
State v. Blanks
defense that a killing was accidental presents a different issue from a claim that a killing was done in self-defense
examined
Cited as authority (verbatim quote)
Zelenak v. Commonwealth
(2×)
what reasonably appeared to the accused at the time of the , as creating the necessity for act, is the test and not what reasonably appeared to , provided it would so appear to some other reasonable person under similar circumstances.
examined
Cited as authority (quoted)
Small v. Commonwealth
the law of self-defense is the law of necessity, and the necessity relied upon must not arise out of defendant's own misconduct. accordingly, a defendant must reasonably fear death or serious bodily harm to himself at the hands of his victim.
examined
Cited as authority (quoted)
Edmonds v. Commonwealth
the law of self-defense is the law of necessity, and the necessity relied upon must not arise out of defendant's own misconduct. accordingly, a defendant must reasonably fear death or serious bodily harm to himself at the hands of his victim.
discussed
Cited as authority (rule)
Doljac v. Clarke
“A defendant may always act upon reasonable appearance of danger, and whether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted.” McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Frizzell v. Clark
Mullaney, 421 U.S. at 704 (holding it unconstitutional to place the burden of proof on defendant to prove heat of passion, because malice, an element of the offense, negates heat of passion); McGhee v. Commonwealth, 248 S.E.2d 808, 810 (Va. 1978) (noting that an accident cannot be willful, deliberate and malicious, and because the Commonwealth must prove willful, deliberate and malicious, the burden remains on the Commonwealth to prove that killing was not an accident).
discussed
Cited as authority (rule)
David Stanfield v. State of Mississippi
Ct. App. 2007), corrected (Aug. 16, 2007) (“In felon-in-possession cases, the distinctions between the common law defenses of duress, necessity, and self-defense are regarded as immaterial, and the modern trend is to lump these defenses together under the generic rubric of ‘justification.’” (citations omitted)); McGhee v. Commonwealth, 248 S.E.2d 808, 810 (Va. 1978) (emphasis added) (“The law of self-defense is the law of necessity. . . .”). 12 interrelated concept with the defense of necessity, instructing the jury that the defendant may have lawfully possessed a firearm out of ne…
discussed
Cited as authority (rule)
Thomas Robert Lienau v. Commonwealth of Virginia
(2×)
also: Cited "see"
The Supreme Court has recognized that “[a] defendant may always act upon reasonable appearance of danger, and whether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted.” McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Thomas Robert Lienau v. Commonwealth of Virginia
(2×)
also: Cited "see"
The Supreme Court has recognized that “[a] defendant may always act upon reasonable appearance of danger, and whether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted.” McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
cited
Cited as authority (rule)
Sergio Ramon Zuniga Robles, a/k/a Sergio Robles v. Commonwealth of Virginia
McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Thomas Robert Lienau v. Commonwealth of Virginia
(2×)
also: Cited "see"
The Supreme Court has recognized that “[a] defendant may always act upon reasonable appearance of danger, and whether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted.” McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Jamar Dominic Green v. Commonwealth of Virginia
In fact, Code § 18.2-280(D) states that the statute does not apply to any “person whose said willful act is otherwise justifiable or excusable at law in the protection of his life or property, or is otherwise specifically authorized by law.” -9- or fire a firearm, as appellant was “struck almost instantly several times” and then “an unknown person” fired a weapon3 and “undoubtedly there’s firing coming from the vehicle as well, but [the video does not show] the timeline in which that occurred.” Appellant also argued there was no evidence as to why the shooting occurred or �…
discussed
Cited as authority (rule)
Quinton N. Washington, s/k/a Quintin N. Washington v. Commonwealth of Virginia
“A defendant may always act upon reasonable appearance of danger, and whether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted.” McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978) (emphasis added). “[F]acts . . . not known to the defendant at the time of the shooting . . . could not have affected his state of mind or the circumstances as they reasonably appeared to him at that crucial time.” Jones v. Commonwealth, 217 Va. 226, 229 , 228 S.E.2d 124, 126 (1976). 1 Appellant concedes that he was the in…
discussed
Cited as authority (rule)
Carlos Matthew Bell v. Commonwealth of Virginia
Analysis “Self-defense is an affirmative defense ... and in making such a plea, a ‘defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.’ ” Commonwealth v. Cary, 271 Va. 87, 99 , 623 S.E.2d 906, 912 (2006) (quoting McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)).
discussed
Cited as authority (rule)
Cordell Lionel Carter v. Commonwealth of Virginia
When a defendant claims he was acting in self-defense, he bears the burden of producing evidence of “justification or excuse that raises a reasonable doubt in the minds of the jurors.” McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Sylvester Matthew Cheatham v. Commonwealth of Virginia
An assertion of self-defense by a defendant in a homicide case “implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.” Commonwealth v. Sands, 262 Va. 724, 729 , 553 S.E.2d 733, 736 (2001) (quoting McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)).
discussed
Cited as authority (rule)
Justin Metro Arehart v. Commonwealth of Virginia
“Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt.” Smith v. Commonwealth, 17 Va. App. 68, 71 , 435 S.E.2d 414, 416 (1993) (citing McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)).
discussed
Cited as authority (rule)
Osman v. Osman
(2×)
also: Cited "see, e.g."
Indeed, by arguing self-defense “a defendant implicitly admits the killing was intentional.” McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
cited
Cited as authority (rule)
Ardie Corneilus Flowers, Jr. v. Commonwealth of Virginia
McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Sheldon Andre Swilling v. Commonwealth of Virginia
“Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt.” Smith v. Commonwealth, 17 Va. App. 68, 71 , 435 S.E.2d 414, 416 (1993) (citing McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)).
discussed
Cited as authority (rule)
Williams v. Commonwealth
In Virginia, a criminal defendant typically bears the burden of “producing evidence in support of [an affirmative defense] sufficient to raise a reasonable doubt of [his or her] guilt.” Regular Veterans Assoc., Ladies Auxiliary v. Commonwealth, 18 Va.App. 683, 688 , 446 S.E.2d 621, 624 (1994) (citing McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)). 4 As is the case with any defense, “a defendant may shoulder this burden of production by pointing to evidence adduced during the government’s case, by introducing evidence to his own behoof, by relying on some combina…
cited
Cited as authority (rule)
Joseph Wayne Garrard v. Commonwealth of Virginia
McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Quinton S. Hill v. Commonwealth of Virginia
“Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt.” Smith v. Commonwealth, 17 Va. App. 68, 71 , 435 S.E.2d 414, 416 (1993) (citing McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)).
discussed
Cited as authority (rule)
Ralph Eugene Taylor v. Commonwealth of Virginia
The other self-defense instruction was on excusable use of force, applicable if the jury found Taylor was, at least in part, at fault: If you believe from the evidence that the defendant was to some degree at fault in provoking or bringing upon the difficulty, and if you further believe that when attacked: (1) He retreated as far as he safely could under the circumstances; (2) In a good faith attempt to abandon the fight; and (3) Made known his desire for peace by word or act; and (4) He reasonably feared, under the circumstances as they appeared to him, that he was in danger of bodily harm; a…
examined
Cited as authority (rule)
John Henry Bufford, III v. Commonwealth of Virginia
(3×)
also: Cited "see"
McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Jermaine Leon Thurston v. Commonwealth of Virginia
“Self-defense is an affirmative defense . . . , and in making such a plea, a ‘defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence . . . that raises a reasonable doubt in the minds of the jurors [as to the defendant’s guilt of the underlying offense].’” Commonwealth v. Sands, 262 Va. 724, 729 , 553 S.E.2d 733, 736 (2001) (quoting McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)).
discussed
Cited as authority (rule)
Dunn v. Commonwealth
(2×)
“It can be safely said that in Virginia there is no principle more firmly imbedded in the body of the law, or one that has been more often stated, than the principle that in every criminal case the evidence of the Commonwealth must show, beyond a reasonable doubt, every material fact necessary to establish the offense for which a defendant is being tried.” McGhee v. Commonwealth, 219 Va. 560, 561 , 248 S.E.2d 808, 810 (1978). “[W]here a fact is equally susceptible of two interpretations one of which is consistent with the innocence of the accused, [the trier of fact] cannot arbitrarily a…
discussed
Cited as authority (rule)
Wendell Wallace Terry v. Commonwealth of Virginia
Self-defense is an affirmative defense to a charge . . . and in making such a plea, a ‘defendant implicitly admits [his actions were] intentional and assumes the burden of introducing evidence in justification or excuse that raises a reasonable doubt . . . .’” (quoting McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)).
cited
Cited as authority (rule)
Caison v. Commonwealth
A defendant claiming self-defense “implicitly admits the killing was intentional.” McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Tart v. Commonwealth
(2×)
also: Cited "see, e.g."
In Virginia, a criminal defendant typically bears the burden of “producing evidence in support of [an affirmative defense] sufficient to raise a reasonable doubt of [his or her] guilt.” Regular Veterans Assoc., Ladies Auxiliary v. Commonwealth, 18 Va.App. 683, 688 , 446 S.E.2d 621, 624 (1994) (citing McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)). 1 As is the case with any defense, “a defen *277 dant may shoulder this burden of production by pointing to evidence adduced during the government’s case, by introducing evidence to his own behoof, by relying on some c…
discussed
Cited as authority (rule)
Timothy Rollison v. Commonwealth
A defendant claiming self-defense “implicitly admits the killing was intentional,” McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978), but he “has no burden to prove the defense or negate an element of the crime,” Graham v. Commonwealth, 31 Va. App. 662, 674 , 525 S.E.2d 567, 573 (2000).
cited
Cited as authority (rule)
Frederick Leon Davis v. Commonwealth
McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
cited
Cited as authority (rule)
Yvonne Barbara Jackson v. Commonwealth
McGhee v. Commonwealth, 219 Va. 560, 561 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Donald L. Thornburgh, II v. Commonwealth
The Trial Judge Did Not Err in Rejecting Thornburgh’s Claim of Self-Defense “Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt.” Smith v. Commonwealth, 17 Va. App. 68, 71 , 435 S.E.2d 414, 416 (1993) (citing McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)).
discussed
Cited as authority (rule)
Tyrone Maurice Epps v. Commonwealth
“Self-defense is an affirmative defense . . . [in which] a ‘defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.’” Sands, 262 Va. at 729 , 553 S.E.2d at 736 (quoting McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)).
discussed
Cited as authority (rule)
Kiana Tonye Brown v. Commonwealth
By raising a claim of self-defense, a defendant “implicitly admits” that his use of violence “was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.” Commonwealth v. Sands, 262 Va. 724, 729 , 553 S.E.2d 733, 736 (2001) (quoting McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)).
cited
Cited as authority (rule)
Rebecca Scarlett Cary v. Commonwealth
McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Joann Marie Crews Walker v. Commonwealth of Virginia
Similarly, in McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978), the Supreme Court stated that the test of self-defense is whether the accused “reasonably fear[ed] death or serious bodily harm to himself at the hands of his victim.” (Emphasis added.) See also Smith v. Commonwealth, 17 Va. App. 68, 72-73 , 435 S.E.2d 414, 417 (1993) (finding excusable homicide in self-defense requires “an overt act indicating the victim’s imminent intention to kill or seriously harm the accused” (emphasis added)).
discussed
Cited as authority (rule)
Jeffrey Neal Coleman v. Commonwealth
By raising a claim of self-defense, the defendant “implicitly admits” that his use of violence “was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.” Commonwealth v. Sands, 262 Va. 724, 729 , 553 S.E.2d 733, 736 (2001) (quoting McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)).
discussed
Cited as authority (rule)
Quy Thi Nguyen, s/k/a, etc v. Commonwealth
The test of self-defense is whether the accused "reasonably fear[ed] death or serious bodily harm to himself at the hands of his victim." McGhee [v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)].
discussed
Cited as authority (rule)
Hughes v. Commonwealth
Whether an accused proves circumstances sufficient to create a reasonable doubt that he acted in self-defense is a question of fact.” Smith v. Commonwealth, 17 Va.App. 68, 71 , 435 S.E.2d 414, 416 (1993) (citing McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978); Yarborough, 217 Va. at 979 , 234 S.E.2d at 292 ).
discussed
Cited as authority (rule)
DeCarlos D. Coleman v. Commonwealth
"Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt." Smith v. Commonwealth, 17 Va. App. 68, 71 , 435 S.E.2d 414, 416 (1993) (citing McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978); Yarborough v. Commonwealth, 217 Va. 971, 979 , 234 S.E.2d 286, 292 (1977)). "[A] person assaulted while in the discharge of a lawful act, and reasonably apprehending that his assailant will do him bodily harm, has the right to repel the assault by all the force he deems necessary, and is not compell…
discussed
Cited as authority (rule)
Figg v. Schroeder
The Figgs correctly observe that, while the excessiveness of force is a prima facie element of their § 1983 action, Miller v. Taylor, 877 F.2d 469, 472 (6th Cir.1989), they need only prove, to prevail in their state wrongful death action, that Thomas Figg’s death was the fault of the Defendants; any justification must then be raised as an affirmative defense to the state claim, McGhee v. Commonwealth, 219 Va. 560 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Gayle W. Figg, Personally and as Personal Representative of the Estate of Thomas Allen Figg, Deceased Robert L. Figg, III John Stuart Figg Martha Figg Williams Wayne Attanasio v. John A. Schroeder, Sergeant Michael J. Anthony, Sergeant, and Thomas C. Land, Individually and in His Official Capacity as Sheriff's Deputy John Does, 1-10, Consisting of Several Unidentified Hanover County Sheriff's Deputies, Individually and in Their Official Capacities as Sheriff's Deputies Winston R. Robertson Douglas R. Hines v. Stuart Cook, Individually and as Sheriff, Hanover County, Gayle W. Figg, Personally and as Personal Representative of the Estate of Thomas Allen Figg, Deceased Robert L. Figg, III John Stuart Figg Martha Figg Williams Wayne Attanasio v. John A. Schroeder, Sergeant Michael J. Anthony, Sergeant, and Thomas C. Land, Individually and in His Official Capacity as Sheriff's Deputy John Does, 1-10, Consisting of Several Unidentified Hanover County Sheriff's Deputies, Individually and in Their Official Capacities as Sheriff's Deputies Winston R. Robertson Douglas R. Hines v. Stuart Cook, Individually and as Sheriff, Hanover County, Gayle W. Figg, Personally and as Personal Representative of the Estate of Thomas Allen Figg, Deceased Robert L. Figg, III John Stuart Figg Martha Figg Williams Wayne Attanasio v. John A. Schroeder, Sergeant Michael J. Anthony, Sergeant Thomas C. Land, Individually and in His Official Capacity as Sheriff's Deputy John Does, 1-10, Consisting of Several Unidentified Hanover County Sheriff's Deputies, Individually and in Their Official Capacities as Sheriff's Deputies Winston R. Robertson Douglas R. Hines v. Stuart Cook, Individually and as Sheriff, Hanover County
A judgment may be reversed for error in an instruction "only if the error is determined to have been prejudicial, based on a review of the record as a whole." Abraham v. County of Greenville, 237 F.3d 386, 393 (4th Cir.2001). 47 The Figgs correctly observe that, while the excessiveness of force is a prima facie element of their § 1983 action, Miller v. Taylor, 877 F.2d 469, 472 (6th Cir.1989), they need only prove, to prevail in their state wrongful death action, that Thomas Figg's death was the fault of the Defendants; any justification must then be raised as an affirmative defense to the st…
discussed
Cited as authority (rule)
Commonwealth v. Sands
(2×)
Self-defense is an affirmative defense to a charge of murder, and in making such a plea, a “defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.” McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Humphrey v. Commonwealth
We agree and hold that the legislature’s inclusion of exceptions for certain professions and for convicted felons who have been pardoned does not indicate an intention to abrogate the common law defense of necessity. *45 “The law of self-defense is the law of necessity.” McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Darryl Carneal Law v. Commonwealth of Virginia
"The law of self-defense is the law of necessity, and the necessity relied upon must not arise out of defendant's own misconduct." McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
Sands v. Commonwealth
Bailey, 200 Va. at 96 , 104 S.E.2d at 31 . “[W]hether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted.” McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978).
discussed
Cited as authority (rule)
State v. Bradley
Crim.App.1973) (person may use force in self-defense where officer placed hand on gun and threatened to shoot, even where officer testified he didn't intend to shoot); Pennsylvania Commonwealth v. French, 531 Pa. 42 , 611 A.2d 175, 179 (1992) ("arrestee's use of force in self protection is justified when the arrestee reasonably believes that such force is immediately necessary to protect against an arresting officer's use of unlawful and deadly force") (emphasis added); TennesseeTenn. Code Ann. § 39-11-611(e)(2) (1997) (force authorized in self-defense where "[t]he person reasonably belie…
Retrieving the full opinion text from the archive…
William B. McCULLOUGH, Appellant,
v.
Audrey J. McCULLOUGH, Respondent
v.
Audrey J. McCULLOUGH, Respondent
20781.
Supreme Court of South Carolina.
Oct 16, 1978.
Kirby D. Shealy, Jr., of Wise, Wise & Shealy, Columbia, for appellant., John A. Mason, Columbia, for respondent.
Per Curiam.
Cited by 4 opinions | Published
Citer courts: Supreme Court of Virginia (2) · Court of Appeals of South Caro… (1)
Per Curiam:
This is an appeal by the husband-appellant from an award of the lower court granting a divorce and awarding, as an incident thereto, certain stocks and an interest in a savings account to the wife-respondent. Alhtough the award herein is characterized in the order of the lower court as “alimony and/or property settlement”, we find the proper characterization to be alimony in considering the entirety of the record. The appellant questions the authority of the court to grant specific property as alimony, the alleged excessiveness of such alimony, and the alleged excessiveness of the attorney’s fees awarded the wife’s counsel. We affirm the amounts granted as alimony and attorney’s fees, but further find that the lower court was without authority, under the prevailing state of the law, to award alimony in the form of specific property.
The alimony awarded the wife in this case consisted of a one-third interest in a savings account owned by the husband in the total amount of $3,056.12, as well as various shares of stock owned by the husband having a total value of $12,733.95, the quantity and type of which are specifically itemized in the order. The decree sets forth that the above award would include all accrued amounts due by the husband to the wife under a previous temporary order[*477] of support issued in 1966. The decree further provides that the husband shall pay to the wife’s counsel $1,000 as attorney’s fees.
After reviewing the record and listening to oral arguments, we are of the view that the lower court committed no abuse of discretion or other error of law in fixing the above amounts of alimony and attorney’s fees. We are also of the opinion that the special circumstances of this case warranted an award of lump sum rather than periodic alimony as sanctioned by § 20-3-130, S. C. Code of Laws (1976). Since these issues are controlled by settled legal principles, a full written discussion would be of no precedential value. We accordingly affirm the amounts found by the lower court under Rule 23 of the Rules of Practice of this Court.
Appellant contends that the lower court was without jurisdiction to award his personal property to respondent as alimony. We agree with appellant that the family court’s award of property in satisfaction of alimony obligations was improper under the controlling principles of Wilson v. Wilson, S. C., 241 S. E. (2d) 566 (1978) and Smith v. Smith, 264 S. C. 624, 216 S. E. (2d) 541 (1975). In Wilson, we held that while the lower court was at liberty to specify a property transfer as an alternate method of satisfying an alimony award, it could not unconditionally order the property transfer as alimony. It is clear from the record that appellant was not given the option of remitting a sum of money to his wife as alimony, but instead was compelled by decree to transfer to his wife personal property principally in the form of stock. Because no such option was made available to appellant, we are bound by Smith to restrict alimony to payments in money.
It should be pointed out that our decision in no way affects the court’s authority to effectuate property settlements incident to a divorce when these matters are properly brought before the court in the pleadings or by stipulation of[*478] the parties. [1] However, the issue of property division was raised by neither party in this ease. The respondent in her pleadings prayed only for “alimony and attorney’s fees.”
While we affirm respondent’s entitlement to alimony in the amounts found by .the family court judge, we find the form of award incompatible with the prevailing law as dictated by Smith and Wilson. We, therefore, remand for amendment of the order of the lower court in conformity with the views herein expressed.
Modified and remanded.
1
Disposition of property between parties during a divorce action is now authorized by § 14-21-1020, 1976 Code of Laws (Cum. Supp. 1977) effective July 1, 1977 if “prayed for in the pleadings,” and prior case law recognized authority for property division through voluntary litigation, Pi ana v. Piana, 239 S. C. 367, 123 S. E. (2d) 297 (1961) or by stipulation. Moyle v. Moyle, 262 S. C. 308, 204 S. E. (2d) 46 (1974). suits were in different counties and absent showing of