State v. Amerson

• Decision Date: 29 June 1964
• Docket Number: No. 18232,18232
• Citation: 244 S.C. 374,137 S.E.2d 284
• Parties: The STATE, Respondent, v. John AMERSON, Appellant.
• Court: South Carolina Supreme Court

Page 284

137 S.E.2d 284

244 S.C. 374

The STATE, Respondent, v. John AMERSON, Appellant.

No. 18232.

Supreme Court of South Carolina.

June 29, 1964.

Jennings & Jennings, Bishopville, for appellant.

Sol. R. Kirk McLeod, Sumter, for respondent.

BUSSEY, Justice.

This is an appeal in forma pauperis from a conviction of the statutory crime of housebreaking and consequent sentence, the defendant-appellant being represented here and upon the trial below by appointed counsel.

The defendant was indicted for burglary and grand larceny, it being alleged that on the 26th day of August 1963 he broke and entered the dwelling house of Maylese Stirlene in Lee County, South Carolina, in the nighttime and stole therefrom certain articles exceeding $20 in value. The evidence reflected that the entry into the house of the said Stirlene occurred between 6 P.M. on the afternoon of August 26th and 7 or 7:30 A.M. on August 27th, and the defendant's motion for a directed verdict as to the charge of burglary for failure to prove an entry in the nighttime was granted. The case was submitted to the jury as to housebreaking and grand larceny, the jury returning a verdict 'as to housebreaking guilty' but 'as to grand larceny not guilty.'

The evidence shows that entry was made into the home of Stirlene and that taken therefrom were the following articles: one coat, one electric razor with vibrator, and one pistol, all of which stolen articles were admittedly in possession of the defendant on August 27th. The evidence further shows that some time shortly prior to August 26, the defendant performed certain work for Stirlene at her residence, including the repair of a number of window latches. This circumstance and the possession of the stolen goods, with the presumption arising therefrom, constituted the State's evidence inculpating the defendant. The defendant denied his guilty as to both counts and testified as to how he had innocently come into possession of the stolen goods.

Upon the return of the jury verdict, defendant moved for a directed verdict of not guilty as to the charge of housebreaking on the grounds that, (1) the verdict of guilty as to housebreaking was inconsistent with the verdict of not guilty as to grand larceny, and (2) that since the defendant had been found not guilty as to grand larceny, there was insufficient evidence as a matter of law to prove beyond a reasonable doubt that the defendant had committed the crime of housebreaking. Said motion was overruled and defendant was sentenced to confinement for a period of three years.

The defendant here charges error on the part of the trial judge in failing to grant such motion. It is conceded that the evidence, including the presumption arising from the possession of recently stolen goods, was sufficient to sustain a finding of guilty as to housebreaking, but it is argued that since the defendant was found not guilty of grand larceny, such finding removed any adverse presumption that arose from possession of the stolen goods, and, without such presumption there was no evidence left sufficient to sustain a verdict of guilty as to housebreaking. Secondly, it is argued that since the goods were stolen at the same time that the house was entered, the only conclusion that could be drawn from the evidence is that whoever stole the goods also broke into the house, and since the defendant was found not guilty of grand larceny, the verdict of the jury was inconsistent and the defendant's conviction of housebreaking cannot, therefore, be sustained.

The principal authority relied upon by the defendant on appeal is the following general statement from 23A C.J.S. Criminal Law § 1403, p. 1091, as follows:

'A verdict which acquits accused of a crime which includes acts necessary to the commission of another crime for which he is found guilty is inconsistent.'

A reading of the entire section above quoted from, and the many cases cited in the footnotes thereto, shows that the authorities are not entirely in harmony as to what constitutes an inconsistent verdict and are in sharp conflict as to the effect of any such inconsistency when found to exist. In some jurisdictions, including the Federal courts, since the decision of the United States Supreme Court in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, an inconsistency in the verdict of a jury is held to be of no effect. In a number of states, however, it is clear that the rule is that an inconsistent verdict cannot be allowed to stand, but even in those jurisdictions the weight of authority supports the proposition that the defendant in entitled only to a new trial on all counts and not to be acquitted of and discharged from the count on which he was convicted. This view was aptly expressed by the Supreme Court of Missouri in the case of State v. Akers, 278 Mo. 368, 213 S.W. 424, where the court said:

'If the verdict * * * was too inconsistent to support a judgment of conviction, it was likewise too inconsistent to support a judgment of acquittal. As has often been said, 'It is a poor rule which does not work both ways."

In this connection see People v. Andursky, 75 Cal.App. 16, 241 P. 591; People v. Harrigan,...