DeLee v. Knight

• Decision Date: 31 December 1975
• Docket Number: No. 20142,20142
• Citation: 221 S.E.2d 844,266 S.C. 103
• Court: South Carolina Supreme Court
• Parties: Elijah DeLEE, Appellant, v. Carl KNIGHT, Sheriff of Dorchester County, et al., Respondents.

Page 844

221 S.E.2d 844

266 S.C. 103

Elijah DeLEE, Appellant, v. Carl KNIGHT, Sheriff of Dorchester County, et al., Respondents.

No. 20142.

Supreme Court of South Carolina.

Dec. 31, 1975.

F. Henderson Moore and Ray P. McClain, Charleston, and Laughlin McDonald, Atlanta, Ga., for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Emmet H. Clair and Stephen T. Savitz, Columbia, for respondents.

NESS, Justice:

Elijah DeLee was denied post conviction relief and appeals. The trial court upheld appellant's conviction of involuntary manslaughter for which he was sentenced to three years imprisonment. DeLee gave notice of intention to appeal the conviction but failed to perfect the appeal within 210 days. The trial court found the failure to perfect the appeal within the required period was due to neglect of counsel and not acquiesced in by DeLee. In order to fully protect the appellant's right to the effective assistance of counsel at every critical stage of the criminal process, we have considered the merits of each issue as if this were a belated appeal from the conviction. See Gore v. Leeke, 261 S.C. 308, 199 S.E.2d 755 (1973).

The trial court's denial of the application for post conviction relief and the conviction of involuntary manslaughter are affirmed. The appellant raises four issues.

(1) Was evidence of speed and careless operation of the appellant's motor vehicle moments before the accident improperly admitted; (2) was there sufficient evidence to submit the charge to the jury; (3) was the procedure for selecting a petit jury and empaneling a jury for trial prejudicial error; and (4) did the court abuse its discretion in refusing a change of venue.

Viewed most favorably to the State, the evidence and reasonable inferences revealed the appellant was driving a school van type bus, overloaded with very young children, when it left the road, ran into some trees and overturned. One of the passengers was killed and others were injured. Damages to the bus evinced excessive speed as one side of the bus had been ripped from its frame.

Two witnesses observed the bus a few minutes prior to the accident. One testified she passed the bus about eight tenths of a mile from the accident while going in the opposite direction. She observed the bus for about five hundred feet; it was across the center line at times as much as two feet and was speeding.

The other witness followed the appellant for over a mile. The appellant was speeding and weaving from one side of the road to the other. The witness was behind the appellant until they reached an intersection about one mile from the accident. At the intersection the witness continued straight and the appellant turned without giving a signal or stopping in obedience to a stop sign.

Appellant contends the testimony of these witnesses should have been excluded as being too remote to have substantial probative value. Based upon appellant's hypothesis, the only relevant testimony would have been an eyewitness account of the wreck or of the res gestae; presumably this would include the braking distance prior to the wreck.

Appellant was charged with involuntary manslaughter which required a finding of criminal negligence, statutorily defined as conduct evidencing a 'reckless disregard of the safety of others.' S.C.Code § 16--55.1 (1974 Cum.Supp.) ¹ The legal issue was whether the appellant's actions were in violation of the statute. 'Recklessness implies the doing of a negligent act knowingly. When a man actually acts negligently and he realizes that he is acting negligently, the law says he is reckless or willful and wanton . . .' State v. Rachels, 218 S.C. 1, 8, 61 S.E.2d 249, 252 (1950); Yaun v. Baldridge, 243 S.C. 414, 134 S.E.2d 248 (1964).

The testimony of the two witnesses tended to prove the appellant's conscious indifference to the safety of the occupants of the bus by showing a continuity of speed and hazardous inattentive operation of the bus leading up to the accident. In State v. Jenkins, 249 S.C. 570, 155 S.E.2d 624 (1967), this Court approved of the trial court's allowance of testimony concerning the operation of a vehicle fifteen minutes prior to a wreck as being relevant to show the condition and mental attitude of the defendant at the time of the accident itself. The testimony challenged in the case at bar falls within the ambit of Jenkins. It was not so remote as to lead to conjecture or speculation.

Next, appellant argues the judge erred in refusing his motion for a directed verdict. The trial judge is concerned with the existence of evidence, not its weight, from which a jury could conclude the appellant's Criminal negligence was the proximate cause of the child's death. The State had to prove heedlessness or willfulness; mere negligence does not support the conviction. See State v. Phillips, 226 S.C. 297, 84 S.E.2d 855 (1954); State v. Jenkins, supra, both dealing with reckless homicide. S.C.Code (1962), § 46--341 which deals with 'reckless disregard of the safety of others.'

The question of what constitutes criminal negligence depends on the facts and circumstances of each case. State v. Addis, 257 S.C. 482, 186 S.E.2d 415 (1972). The evidence of persistent speed, lack of control, which resulted in an unexplained departure from the road, and a pattern of careless weaving from one side of the road to the other, while operating a bus overcrowded with young children, supports a finding of criminal negligence.

The next issue involves the jury commission's removal of five prospective jurors from the petit jury venire. Appellant's counsel objected citing S.C.Code, § 38--108 (1975 Cum.Supp.) which reads:

'The presiding judge for cause shown may excuse anyone from jury duty at any term of court if he deems it advisable. But no juror who has been drawn to serve at any term of the court shall be excused except for good and sufficient cause, Upon affidavits, which, together with his application, shall be filed in the office of the clerk of the court and remain on record. Provided, that any woman having a child under seven years of age of whom she has legal custody and the duty of care, Who desires to be excused from jury duty, shall present the facts to the presiding judge in open court, and the responsibility for custody and advisability of granting the request and the provisions of § 38--109 shall not apply to any such woman juror.' (Emphasis added).

The court conducted a hearing and concluded the jurors were excluded...