State v. Bikle

• Decision Date: 06 May 1936
• Docket Number: 14289.
• Citation: 185 S.E. 753,180 S.C. 400
• Parties: STATE v. BIKLE.
• Court: South Carolina Supreme Court

185 S.E. 753

180 S.C. 400

STATE v. BIKLE.

No. 14289.

Supreme Court of South Carolina

May 6, 1936

Appeal from General Sessions Circuit Court of Charleston County; A L. Gaston and E. C. Dennis, Judges.

Louis A. Bikle was convicted of embezzlement of public funds, and he appeals.

Affirmed.

J. D E. Meyer, of Charleston, for appellant.

Robert McC. Figg, Jr., Sol., and J. Waties Waring, both of Charleston, for the State.

FISHBURNE Justice.

On March 12, 1934, the grand jury for Charleston county returned a true bill on an indictment containing 112 counts, each charging that on a certain day named in the count Louis A Bikle did willfully, unlawfully, and feloniously commit embezzlement of a specific sum of money, with fraudulent intention, in that he, being then and there the treasurer of the commissioners of public works of the city of Charleston, and then and there being charged and intrusted with the care, possession, safekeeping, transfer, and disbursement of large sums of public money owned by and belonging to the city council of Charleston and to the commissioners of public works, did willfully, unlawfully, and feloniously embezzle and take and appropriate such good and lawful money of the said public funds to his own use and purpose, with intent to defraud the city council and the commissioners, and did then and there embezzle and defraud them.

On March 13, 1934, the defendant was arraigned, and after a motion to quash the indictment was made and overruled, he pleaded not guilty.

Thereafter, in the March, 1934, term of the court of general sessions for Charleston county, upon due notice, he made a motion for a change of venue, based upon his own affidavit and the affidavits of 226 other citizens of Charleston county, to the effect, in substance, that in their opinion he could not get a fair and impartial trial in that county. The state offered, in opposition to the motion, the affidavits of 187 citizens of the county that in their judgment the defendant could obtain a fair trial in Charleston county.

After hearing full arguments for and against the motion, the presiding judge, Hon. Arthur L. Gaston, overruled the motion.

The case was thereafter continued at the March, June, September, and December terms of the court for the year 1934.

At the March, 1935, term the case was called for trial. No new motion to change the venue was made at this time, nor was any additional showing therefor made or suggested. The state elected to go to trial on the thirty-sixth count of the indictment, which charged the embezzlement on October 23, 1933, by the defendant of $1,049.14.

During the trial the state offered the evidence of 23 witnesses, and introduced also a considerable amount of documentary evidence. The defense offered no evidence, and at the conclusion of the state's case moved for a directed verdict upon the ground that the evidence tended to prove larceny and not embezzlement of the funds in question, and that therefore there was a variance between the allegations of the indictment and the proof. This motion was overruled by the presiding judge. The trial resulted in a verdict of "Guilty on County 36," after which a motion for a new trial was made and refused. Thereupon Judge Dennis sentenced the defendant to serve a term of 5 years in the state penitentiary, and to pay a fine of $100.

The defendant submitted certain requests to charge, eleven in number, some of which were charged, some modified, and some refused.

Exceptions have been taken in this appeal to the modification of request No. 6, and the refusal to charge requests Nos. 2 and 5, and from the orders refusing to quash the indictment, refusing the change of venue, the admission of certain evidence, in overruling the defendant's motion for a directed verdict, and in imposing upon the defendant a sentence not warranted by law.

The defendant has formulated six questions, based upon the exceptions, which will be considered in sequence.

Should the indictment have been quashed?

This question is predicated upon exceptions 1 and 2, which allege that the allegations of the indictment lacked sufficient particularity to enable the defendant to properly prepare his defense; and upon the further ground that the indictment lacked sufficient definiteness, so that the defendant, if acquitted, could successfully plead autrefois acquit. The defendant-appellant frankly concedes in his brief that the exceptions presenting this question are without merit under the cases of State v. Shirer, 20 S.C. 392, State v. Dewees, 76 S.C. 72, 56 S.E. 674, 11 Ann.Cas. 991, and State v. Wells, 162 S.C. 509, 161 S.E. 177.

Was reversible error committed in refusing to change the venue for trial?

This question is presented by exception 3, which asserts that it was error, amounting to abuse of discretion, to overrule the motion for change of venue, in view of the showing made that defendant could not get a fair and impartial trial in Charleston county. The showing referred to is to be gathered from the very lengthy and voluminous affidavit of the defendant himself, referring to news stories from the press, and short affidavits from 226 citizens that he could not in their judgment get a fair and impartial trial. Opposed to these were the 187 affidavits of other citizens of Charleston county that in their judgment defendant could obtain a fair and impartial trial.

A careful examination of these affidavits convinces us that Judge Gaston, the learned and experienced judge before whom the motion was made, exercised wise discretion in overruling the motion.

In the case of State v. Jackson, 110 S.C. 273, 96 S.E. 416, relied upon by the defendant, 20 prominent citizens of the county made affidavits to the effect that the accused could not obtain a fair trial, and there was no showing to the contrary. Refusal of the change under those circumstances was held to be abuse of discretion; the showing being entirely one way, and uncontroverted. The present case is far different, for here there was a conflicting showing, upon which Judge Gaston, in the exercise of his sound discretion, passed and ruled. No abuse of his discretion has been shown, nor has he been shown to have committed error of law in his ruling.

In the case of State v. Davis, 138 S.C. 532, 137 S.E. 139, the showing made by the defendant for a change of venue was so convincing that the state admitted that there was a strong sentiment against the defendant; the Governor had reasons for thinking that the defendant would be unsafe in the Winnsboro jail; and, on account of the influence of the family of the deceased in the county, the defendant could not even get paid counsel in that county to assist in the striking of the jury for the trial. The facts were not in dispute, and the issue was practically uncontroverted. The Davis Case was far different from the instant case, and in line with, and governed by, the case of State v. Jackson, supra.

It is significant, in considering whether reversible error was committed, amounting to abuse of discretion, to note what importance defendant himself attached to the motion, and whether subsequent events corroborated or refuted this ruling.

The defendant was indicted and arraigned in March, 1934, but was not brought to trial until 12 months later. He was then tried upon a new indictment, and had a legal right to make another motion for a change of venue, at a different time and before a different judge. It is also significant that at the trial, while the state had exhausted its five challenges, when the jury was completed the defendant still had a challenge left, and only five jurors were disqualified on their voir dire, or for cause by the court.

The showing made lacks much of convincing us of the presence in the community or at the trial of passion, prejudice, or an inflamed atmosphere against the defendant. State v. Goodwin, 127 S.C. 107, 120 S.E. 496; State v. Francis, 152 S.C. 17, 149 S.E. 348, 70 A.L.R. 1133; State v. Martin, 155 S.C. 495, 152 S.E. 738. This exception is overruled.

Was reversible error committed in permitting the introduction of evidence tending to establish other counts alleged in the indictment, but on which the defendant was not being tried at the time?

This question is predicated upon exceptions 4, 5, 6, and 7.

Exceptions 4 and 6 assert that evidence of transactions other than that charged in count 36, upon which defendant was being tried, was irrelevant to the issue. Exception 5 asserts that evidence of other transactions did not tend to establish defendant's intent in the transaction being tried. Exception 7 asserts that evidence of the actual amount of the defendant's total shortage was irrelevant to the issue being tried, and was highly prejudicial.

We will discuss exception 7 first.

This exception is predicated upon the overruling of the objection of defendant's counsel to the admission of testimony dealing with the numerous items misappropriated and included in the total defalcation charged, amounting to $48,517.92. The testimony objected to is a portion of that given by Mr. Carson, who audited and examined the books of the defendant, and who checked the cash receipts and disbursements over the period during which the several amounts charged in the indictment were embezzled. He stated that the specific amount charged in count 36 was missing from the funds of the commissioners, and had never been returned.

It is apparent from an examination of the record that the evidence was relevant to show that the money charged in count 36 to have been embezzled was still missing, and had not been returned. This was established by a check of the total cash receipts and total disbursements of the commissioners for the period in question, the...