Sellers v. Boone

• Decision Date: 26 November 1973
• Docket Number: No. 19726,19726
• Citation: 261 S.C. 462,200 S.E.2d 686
• Court: South Carolina Supreme Court
• Parties: Cleveland Louis SELLERS, Appellant, v. Sheriff of Orangeburg County, South Carolina, Vance L. BOONE, Respondent.

Page 686

200 S.E.2d 686

261 S.C. 462

Cleveland Louis SELLERS, Appellant, v. Sheriff of Orangeburg County, South Carolina, Vance L BOONE, Respondent.

No. 19726.

Supreme Court of South Carolina.

Nov. 26, 1973.

John E. Bishop, Greenville, Jack Greenberg and Charles Stephen Ralston, New York City, for appellant.

Atty. Gen Daniel R. McLeod and Asst. Attys. Gen Emmet H. Clair and Robert M. Ariail, Columbia, for respondent.

BUSSEY, Justice:

The instant appeal is from an order of the judge of the First Judicial Circuit denying appellant's application for post-conviction relief. Appellant was arrested on February 9, 1968, following his alleged participation in certain recial disturbances in Orangeburg, South Carolina, and was later indicted on three counts, the first of which charged him with conspiracy to commit the crime of riot, the second of which charged inciting persons to commit a riot, and the third of which charged him with the offense of riot. Upon his trial at the September 1970 term of court, upon appellant's motion, the judge directed a verdict of not guilty as to counts one and two of the indictment, to-wit: conspiracy to riot and incitement to riot, but submitted count three charging the offense of riot to the jury, which returned a verdict of guilty. His conviction was affirmed by this Court. State v. Sellers, 257 S.C. 35, 183 S.E.2d 889. A petition for writ of certiorari was denied by the Supreme Court of the United States on January 22, 1973. The appellant has now served his sentence of one year, less good conduct time, but was still incarcerated when this proceeding was commenced on June 26, 1973.

Upon his prior appeal, appellant contended that the evidence was insufficient to convict him of the crime of riot because there was no evidence of any act of violence committed personally by him in the course of the riot. In affirming his conviction, this Court pointed out that one who is present aiding and abetting in the commission of a misdemeanor is a principal and that there was ample evidence to sustain the inference that the 'conduct of appellant encouraged, incited and promoted the riot' and that such was sufficient to support his conviction.

The sole contention of appellant in the present proceeding is that this Court's affirmance of his conviction on the basis aforesaid, violated the double jeopardy clauses of both State and Federal Constitutions, since he had been the recipient of a directed verdict of not guilty in the lower court as to the count charging 'incitement to riot'. His contention is indeed a novel one and we think it without any merit for a variety of reasons. To begin with, the issue has not been timely raised. While conceivably a situation might arise wherein a question of double jeopardy would arise out of the affirmance by an appellate court of conviction, Under the circumstances of this case, we deem it certain that if there were any double jeopardy as contended by him, such occurred when the trial judge submitted the third court to the jury after having directed a verdict of not guilty as to the second count. The evidence supporting submission of the third count by the trial judge was the same evidence relied upon by this Court as sufficient to sustain the conviction. No point of double jeopardy was then made, nor raised in the course of his first appeal. Again, after our affirmance of his conviction, he had, of course, opportunity to petition for a rehearing, if it was deemed, as now contended, that double jeopardy arose only upon our affirmance, but this he did not do.

Waiving, however, his failure to timely raise the issue, the contention is still without merit. He, of course, argues that the only evidence against him tended to prove the crime of 'incitement to riot' and that since by directed verdict he was acquitted of that particular count, his conviction of the crime of riot on the same identical evidence constituted double jeopardy. There is, to say the least, grave doubt as to whether any such crime as 'incitement to riot' exists in this State. If such a crime does exist, it would apparently be by virtue of the Act of 1712 whereby, with certain exceptions, the common law of England was adopted as the law of this State. Inquiry naturally follows as to whether any such crime was known to the common law of England in the year 1712. In 54 Am.Jur. (2d), 506, Mobs and Riot, Sec. 4, it is said that 'inciting to riot' is a common law crime. Language to the same effect is contained in 77 C.J.S. Riot § 1(a), 422. Neither text, however, cites any English authority for this proposition and, as far as this writer has been able to ascertain, the texts are predicated primarily upon the Pennsylvania case of Commonwealth v. Merrick, 65 Pa.Super. 482, 499, decided in 1917. It is clear from that decision, as well as other Pennsylvania cases, that the crime 'inciting to riot' is regarded in Pennsylvania as a common law crime, but the opinion in the cited case refers to no English authority for the precise proposition. At least several other states have followed the Pennsylvania pronouncement that such is a common law crime but without any apparent examination of the origin of the proposition.

Blackstone in his Commentaries, Book IV, 142--147, deals at length with the law as to affrays, riots, routs and unlawful assemblies, but makes no mention of any offense known eo nomine as 'incitement to riot' or 'inciting to riot'. I quote the following from the footnotes to ...