State v. Allen, No. 20167

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtMOSS; Immediately prior to trial, Appellant moved for a change of venue on grounds that extensive pre-trial publicity had prejudiced his right to a fair trial. After hearing oral argument and reviewing some six newspaper and magazine articles tendere
Citation222 S.E.2d 287,266 S.C. 175
Decision Date11 February 1976
Docket NumberNo. 20167
PartiesThe STATE, Respondent, v. Archie ALLEN, Appellant.

Page 287

222 S.E.2d 287
266 S.C. 175
The STATE, Respondent,
v.
Archie ALLEN, Appellant.
No. 20167.
Supreme Court of South Carolina.
Feb. 11, 1976.

Page 288

[266 S.C. 176] Franklin R. DeWitt, Conway, and Matthew J. Perry, Columbia, for appellant.

[266 S.C. 177] Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Joseph R. Barker, Columbia, Sol. J. M. Long, Jr., and Asst. Sol. Jim Dunn, Conway, for respondent.

[266 S.C. 179] MOSS, Acting Associate Justice:

Archie Allen, the Appellant, was tried in Horry County before the Honorable Clarence E. Singletary on the charge of murdering one Charles McNeill, a South Carolina Game Warden. The jury returned a verdict of guilty of the murder of a law enforcement officer and the Appellant was sentenced, pursuant to Section 16--52 of the 1962 Code of Laws, to death.

The Appellant contends before this Court that he is entitled to a reversal of his conviction and a new trial. Specifically, he assigns error to the conduct of the trial court in three particulars:

(1) In refusing to grant Appellant's motion for a change of venue;

[266 S.C. 180] (2) In refusing to grant Appellant's motion for severance and separate trials; and

(3) In refusing to grant Appellant's motion to set aside the verdict or, in the alternative, for a new trial.

The Appellant also urges that his death sentence must be set aside because of what

Page 289

he perceives to be constitutional infirmities in Section 16--52.

Appellant's arguments will be considered in detail below. Initially, however, a review of the facts is necessary to an understanding of the issues.

On October 3, 1974, the Appellant, his brother, Cleve Allen, and a friend Sam Todd, were engaged in a deer drive in a rural area of Horry County. At about 11:00 A.M., South Carolina Game Wardens Charles McNeill and Floyd Benton, who were patrolling the area as part of their routine duties, met and conversed for some thirty to forty minutes with the Appellant and his companions.

That afternoon, McNeill and Benton returned to the same area and discovered that a cable, which they had previously placed across the road to keep people out of a nearby game management area, was down. They observed that a vehicle had entered the management area and proceeded to follow it. The vehicle was occupied by Cleve Allen and Sam Todd. The Wardens stopped the vehicle at approximately 2:30 P.M. and Officer McNeill issued both men a ticket. Todd and Allen, followed by the two Wardens, then drove back to the area where the cable was down.

When McNeill and Benton arrived at the cable, the Allen brothers and Todd, their vehicles parked nearby, were still present. The Wardens discovered that the cable was broken and set about repairing it.

Up to this point, the testimony of the four surviving participants of this incident was generally in agreement. Their [266 S.C. 181] versions of the subsequent events were, however, widely divergent. The Appellant and his brother, Cleve Allen, testified that Sam Todd shot both Wardens. Todd testified that the Appellant instigated the trouble and shot McNeill. Todd admitted that he shot Benton.

Floyd Benton testified that McNeill stopped their car near the cable and that he took off his coat and gun and began getting the tools to repair the cable. While he was in the process of getting the tools from the trunk of his car, he observed the Appellant take his gun and walk toward the front of his truck. A few seconds later, Benton heard McNeill say, 'Don't shoot me, Arch, don't shoot me.' Benton saw McNeill standing a few feet away but could not, due to the positions of the vehicles, see the Appellant. Looking around, Benton observed Cleve Allen and Sam Todd sitting in Cleve's truck. He testified that he called to Cleve in an effort to get the latter to restrain his brother. Benton then heard a blast and saw McNeill fall. He testified that the blast came from the direction in which the Appellant was heading when Benton had last seen him.

Benton further testified that he heard an unidentified voice say, 'well, there ain't but one thing to do now and that's kill the last damn one of these sons of bitches.' Benton turned to find Sam Todd aiming his shot gun at him. Todd then shot Benton down, seriously wounding him. The three men then drove off.

Immediately prior to trial, Appellant moved for a change of venue on grounds that extensive pre-trial publicity had prejudiced his right to a fair trial. After hearing oral argument and reviewing some six newspaper and magazine articles tendered by the Appellant, Judge Singletary denied the motion. Appellant contends that denial constitutes reversible error.

In State v. Swilling, 249 S.C. 541, 155 S.E.2d 607, this Court held that the moving party has the burden of showing that prospective jurors have been prejudiced by [266 S.C. 182] pre-trial publicity. Further, we have held that the decision of the trial judge on motions of this nature will not be disturbed in the absence of a showing of abuse of discretion. State v. Fuller, 227 S.C. 138, 87 S.E.2d 287.

A review of the record fails to reveal that the trial judge abused his discretion in the instant case.

Appellant's showing in support of his motion was insufficient to carry his burden of

Page 290

establishing that prospective jurors had been prejudiced by the pre-trial publicity. That showing, as noted above, was limited to some six newspaper and magazine articles. None of those articles were inflammatory or accusatory toward the Appellant and none appeared to be anything but factual in nature.

Furthermore, the trial court followed the procedure approved of in our decision in State v. Crowe, 258 S.C. 258, 188 S.E.2d 379, cert. den., 409 U.S. 1077, 93 S.Ct. 691, 34 L.Ed.2d 666, in that he conducted a careful Voir dire examination of the jurors to determine the existence of any bias or prejudice on their part. The record indicates, in fact, that the trial court propounded every one of the Voir dire questions requested by the Appellant.

The second issue raised by the Appellant concerns the denial of his motion for severance and separate trials. That motion, made some two days prior to trial, was based upon an allegation that the defenses of the Appellant and his co- defendant, Sam Todd, were antagonistic to each other and that the Appellant would be prejudiced if they were tried together.

Generally speaking, as noted by this Court on numerous occasions, the granting or denial of a motion for severance and separate trials is addressed to the discretion of the trial...

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17 practice notes
  • State v. Torrence, No. 23403
    • United States
    • United States State Supreme Court of South Carolina
    • 1 d1 Maio d1 1989
    ...State v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979), cert. denied, 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329 (1980); State v. A. Allen, 266 S.C. 175, 222 S.E.2d 287 (1976); State v. J.L. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976); State v. Ingram, 266 S.C. 462, 224 S.E.2d 711 (1976); State......
  • State v. Plath, No. 21582
    • United States
    • United States State Supreme Court of South Carolina
    • 7 d3 Outubro d3 1981
    ...Act violates Article I, Section 15 of the State Constitution prohibiting corporal punishment. This issue was decided in State v. Allen, 266 S.C. 175, 222 S.E.2d 287 (1976). That case was vacated by the U.S. Supreme Court on other grounds. 432 U.S. 902, 97 S.Ct. 2944, 53 L.Ed.2d 1074 (1977).......
  • State v. Leonard, No. 0602
    • United States
    • Court of Appeals of South Carolina
    • 21 d1 Outubro d1 1985
    ...The general rule applies with equal force when, as in the instant case, the motion is based upon antagonistic defenses." State v. Allen, 266 S.C. 175, 182-83, 222 S.E.2d 287, 290 Leonard's Motion For Continuance To Locate Witness We see no error in the trial judge's denial of the motion for......
  • State v. Salters, No. 21027
    • United States
    • United States State Supreme Court of South Carolina
    • 9 d4 Agosto d4 1979
    ...news accounts published prior to or during the trial. State v. Arnold, 266 S.C. 153, 221 S.E.2d 867 (1976). See also State v. Allen, 266 S.C. 175, 222 S.E.2d 287 (1976); State v. Crowe, 258 S.C. 258, 188 S.E.2d 379 (1972), Cert. den. 409 U.S. 1077, 93 S.Ct. 691, 34 L.Ed.2d 666. However, a j......
  • Request a trial to view additional results
17 cases
  • State v. Torrence, No. 23403
    • United States
    • United States State Supreme Court of South Carolina
    • 1 d1 Maio d1 1989
    ...State v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979), cert. denied, 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329 (1980); State v. A. Allen, 266 S.C. 175, 222 S.E.2d 287 (1976); State v. J.L. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976); State v. Ingram, 266 S.C. 462, 224 S.E.2d 711 (1976); State......
  • State v. Plath, No. 21582
    • United States
    • United States State Supreme Court of South Carolina
    • 7 d3 Outubro d3 1981
    ...Act violates Article I, Section 15 of the State Constitution prohibiting corporal punishment. This issue was decided in State v. Allen, 266 S.C. 175, 222 S.E.2d 287 (1976). That case was vacated by the U.S. Supreme Court on other grounds. 432 U.S. 902, 97 S.Ct. 2944, 53 L.Ed.2d 1074 (1977).......
  • State v. Leonard, No. 0602
    • United States
    • Court of Appeals of South Carolina
    • 21 d1 Outubro d1 1985
    ...The general rule applies with equal force when, as in the instant case, the motion is based upon antagonistic defenses." State v. Allen, 266 S.C. 175, 182-83, 222 S.E.2d 287, 290 Leonard's Motion For Continuance To Locate Witness We see no error in the trial judge's denial of the motion for......
  • State v. Salters, No. 21027
    • United States
    • United States State Supreme Court of South Carolina
    • 9 d4 Agosto d4 1979
    ...news accounts published prior to or during the trial. State v. Arnold, 266 S.C. 153, 221 S.E.2d 867 (1976). See also State v. Allen, 266 S.C. 175, 222 S.E.2d 287 (1976); State v. Crowe, 258 S.C. 258, 188 S.E.2d 379 (1972), Cert. den. 409 U.S. 1077, 93 S.Ct. 691, 34 L.Ed.2d 666. However, a j......
  • Request a trial to view additional results

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