State v. Ballew

• Decision Date: 23 February 1909
• Citation: 63 S.E. 688,83 S.C. 82
• Parties: STATE v. BALLEW et al.
• Court: South Carolina Supreme Court

63 S.E. 688

83 S.C. 82

STATE v. BALLEW et al.

Supreme Court of South Carolina

February 23, 1909

Appeal from Common Pleas Circuit Court of Greenwood County; Geo. W Gage, Judge.

D. J Ballew and another were convicted of aiding an escape, and they appeal. Affirmed.

D. H Magill, for appellants.

R. A. Cooper, Sol., for the State.

WOODS J.

The defendants were convicted on an indictment framed under section 268 of Criminal Code of 1902; the indictment charging that they "did willfully and unlawfully convey into the county jail of Greenwood county, where prisoners were lawfully confined and detained, certain implements for the purpose of aiding and assisting prisoners therein confined to escape, said instruments being a cold-chisel, hammer, and a bunch of keys, against the form of the statute in such case made and provided," etc. The question made by the appeal will be considered without referring separately to each of the 15 exceptions.

There is evidence that Mills Moore and Cohen Moore were confined in the Greenwood jail on the charge of stealing a cow, and Culbert Curry for assault and battery. Nathen Curry was also in jail, but it does not appear on what charge. The four were in one cell. Mills Moore testified for the prosecution that when the defendants, D. W. Ballew and D. J. Ballew, father and son, were at the jail together, D. J. Ballew gave a cold-chisel and a hammer to one of the Currys, and that at another time the elder Ballew brought a bunch of keys for the Currys, who were his nephews, to use in escaping from jail. A bolt was cut with some implement, and a hole was thus made large enough for Cohen Moore to escape. Mills Moore also testified the implements used were the hammer and chisel brought to the Currys. The defendants testified they had not carried to the jail the keys, hammer, or chisel. Members of their family and M. F. Drake, who testified they were with defendants at the jail, corroborated their testimony. The Currys denied on the stand that the defendants had anything to do with the matter, and testified an old hatchet, left by the jailer, was used in breaking the bolt. The jailer, on the contrary, testified the hatchet was outside the cell, and that in his opinion the bolt could not have been cut with the hatchet.

The defendants' counsel contend the circuit judge should have set aside the verdict, because it could stand only on the uncorroborated testimony of accomplices. The point that there was no request from defendants' counsel to charge on this subject may be waived, for there was corroborative evidence. The presence of defendants at the jail in communication with the prisoners, the absence of evidence that any one else had the opportunity to furnish an implement, the evidence of the jailer that the hatchet, which the Currys, testifying on behalf of defendants, said was the implement used, was found by him outside the cell, all taken together certainly furnish some corroboration of the evidence of the Moores.

Questions asked the defendant D. W. Ballew and his children by the presiding judge about the illiteracy of the children did not tend to impeach their veracity, and was not an abuse of discretion.

The ground of appeal "that there is a total failure of proof that at the time of the alleged offense there were any persons in said jail there lawfully committed or detained" might be serious if the question had been made on the trial. There is evidence that the prisoners were in jail charged with acts which are criminal under the laws of the state, but there is no evidence of the process under which they had been committed or detained. The lawfulness of the commitment and detention seems, however, to have been assumed on trial; at least, the defendants did not in any way raise the question in the circuit court, and it is too late for them to make it here. State v. Walker, 79 S.C. 113, 60 S.E. 309.

There was no error of law in refusing a new trial on the ground that the defendants could not be jointly guilty of one offense, because one of them at one time furnished the prisoners with a chisel and...