State v. Addis
| Decision Date | 20 January 1972 |
| Docket Number | No. 19361,19361 |
| Citation | 257 S.C. 482,186 S.E.2d 415 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Ronald Paul ADDIS, Appellant. |
C. Ben Bowen, of Abrams, Bowen & Townes, Greenville, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen., Emmet H. Clair, Columbia, Sol. William Howard Ballenger Walhalla, and Asst. Sol. V. Laniel Chapman and G. Ross Anderson, Jr., Anderson, for respondent.
The defendant, Ronald Paul Addis, was convicted of involuntary manslaughter on July 1, 1971, in the Court of General Sessions for Oconee County. He has appealed.
The evidence reveals that about five minutes after midnight on the morning of August 20, 1970, Bruce McClure was driving his motorcycle in the middle of the right-hand lane of U.S. Highway 123 between Clemson and Seneca. His motorcycle was struck from the rear by an automobile driven by the defendant. McClure died as a result of the collision.
A coroner's inquest was held on September 8, 1970. A preliminary hearing was held on January 28, 1971. At these hearings some of the State's witnesses testified that after the collision the defendant appeared to be in complete control of his faculties and there was nothing to indicate that he was under the influence of alcohol.
Attorney G. Ross Anderson, Jr. represented the family of Bruce McClure in a civil claim against this defendant, and, sometime prior to the trial of this case, completed a settlement. He appeared at the inquest representing the family of the deceased, and appeared of counsel along with the solicitor in the prosecution of this case.
At the commencement of the trial, counsel for the defendant moved the court to suppress all evidence with reference to consumption of alcoholic beverages by the defendant, on the ground that some of the State's witnesses had testified at the coroner's inquest and at the preliminary hearing that the defendant was not under the influence of alcoholic beverages. The motion was denied. Throughout the trial similar objections were also made, and overruled, to any reference to consumption of alcoholic beverages by the defendant.
At the commencement of the trial counsel for the defendant also moved the court to disallow attorney Anderson's participation in the prosecution of the case. The basis of the motion was Sections 17--1 and 17--2 of the South Carolina Code. The motion was overruled, and Mr. Anderson actively participated in the trial.
On appeal the defendant argues that participation in the prosecution by private counsel deprived him of equal protection of the law, and was a denial of due process. Code Sections 17--1 and 17--2 provide as follows:
We do not think that either of these two sections prohibit private counsel from participating in the trial of a criminal case. The sections are designed to control the activities of the solicitor. While it is true, as argued by defense counsel, that the office of the solicitor is a quasi judicial one and his duty is to seek justice and not necessarily convictions in every case, at the same time, traditionally in this State private counsel has been permitted to assist the State in prosecutions. In every criminal prosecution the responsibility for the conduct of the trial is upon the solicitor and he must and does have full control of the State's case. When an attorney, with the consent of the solicitor and the approval of the judge, participates in the trial of a case he assumes the same obligations to the court as the solicitor himself. In the trial of a case it is proper for him to do and say those things which a solicitor might do and say, and no more. If he participates in the trial of a case and does only what a solicitor should do, the defendant has no right to complain. See State v. Gregory, 172 S.C. 329, 174 S.E. 10 (1934).
We are not unaware of the fact that sometimes private counsel, assisting the solicitor, has a tendency to become eager in the prosecution. It therefore becomes the duty of the trial judge, as well as the solicitor, to be solicitous of the defendant's rights, working to the end that a defendant's rights be fully protected. Apparently the question is one of first impression in this State. We cannot say that the participation of private counsel violates the constitution or any statutory or common law principle. Such ruling would appear to be in keeping with the weight of authority.
'By the great weight of authority the court may, in its discretion, permit the prosecuting attorney to have the assistance of counsel employed by the prosecuting witness or other persons interested in securing a conviction; but such appointment, it has been held, can be made only on the request or consent of the prosecuting attorney, which, however, may be presumed from the fact of participation and assistance without objection.
'An assistant or a substitute is not, according to one view, disqualified to take part in a criminal prosecution, although employed to prosecute a civil suit based on, or connected with, the same transaction; but under statutes in some jurisdictions attorneys so employed or interested may not assist in the criminal prosecution. . . . After he has retired from participation in a civil action founded on the same facts special counsel may appear for the prosecution in the criminal case. 27 C.J.S. District and Prosecuting Attorneys § 29(1) (1959). (Emphasis added.)
We find no error in the allowance of Mr. Anderson's participation in the case.
A review of the evidence is necessary in passing upon the next two questions raised by the defendant on this appeal: (1) Was evidence relating to the consumption of alcohol by the defendant admissible at the trial? (2) Should the trial judge have directed a verdict at the end of the evidence or granted a motion to set the verdict aside after the verdict was returned by the jury?
According to defendant's own admission he had been drinking beer at Clemson...
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