State v. Blackwell

• Citation: 220 S.C. 342,67 S.E.2d 684
• Decision Date: 14 November 1951
• Docket Number: No. 16562,16562
• Parties: STATE v. BLACKWELL et al.
• Court: United States State Supreme Court of South Carolina

Page 684

67 S.E.2d 684

220 S.C. 342

STATE v. BLACKWELL et al.

No. 16562.

Supreme Court of South Carolina.

Nov. 14, 1951.

Raymond B. Hildebrand, York, C. T. Graydon, Columbia, for appellant.

Robert W. Hemphill, Chester, for respondent.

STUKES, Justice.

The appellants were tried and convicted in York County upon an indictment which charged that Paul Armstrong set fire to, and burned, a warehouse and that appellants, quoting from the indictment, 'did aid, counsel or procure the burning of such warehouse.' The crime is defined in Sec. 1133 of the Criminal Code of 1942 which prescribes imprisonment of not less than one nor more than ten years. Appellants were sentenced to two years and appealed upon exceptions which principally impute error in the admission of testimony of conversations antecedent to, and at the time of, the commission of the crime. The conversations will appear in the following summary of the material portions of the evidence which was adduced by the State. Appellants did not testify or offer any other evidence.

Armstrong pleaded guilty and testified substantially as follows: He lives at Lowell, near Gastonia, in that part of North Carolina which adjoins York County in this State. He was recently out of a job as a textile worker there. On the night of the fire, which was in the town of Clover in this State, he was with appellants and two others, namely, Pickelseimer and Wilson. At the time of the trial both Pickelseimer and Wilson were imprisoned in North Carolina. Armstrong met up with Pickelseimer and the appellant Backwell, whom he identified in court. Blackwell and Pickelseimer were in the former's automobile when the witness joined them. In the presence of Blackwell, Pickelseimer inquired of the witness whether the latter would like to make about a hundred dollars, to which the witness agreed. The three went to a place called 'Skipper's' where they sat around a while and tools were obtained, a crowbar and screwdriver, which were placed in Blackwell's car. Wilson then went with them to Kay's Cafe in Gastonia where they sat around until the appellant Funderburke arrived in a Buick automobile. All then started to leave in Blackwell's car which it was discovered had a flat tire, whereupon it was parked at a filling station and all got in the Buick of Funderburke, who drove into this State. The conversation among them was to the effect that Wilson said he would burn the building but Pickelseimer suggested that the witness do it. They together planned to rob a drug store in the town of Clover and, to attract 'the law' away from it, they would burn the building which Funderburke said he had found for the purpose. It was decided that the witness would burn the building, Pickelseimer and Wilson would rob the store and appellant Funderburke would pick them up in his automobile afterward. It was between one and two o'clock A.M. When they reached Clover they first went to Funderburke's filling station, called 'Clover Grill'. Funderburke put gasoline from his pump into the attomobile and an additional amount in a half gallon fruit jar which he placed in the automobile. They then drove back toward Gastonia and outside of Clover they put Blackwell out and turned back toward the town on a dirt road. Blackwell was to remain at that point until the others gathered after the burning and robbery when Funderburke would pick them up there. The four others, including the witness, went into town in the automobile of Funderburke who was driving. Wilson and Pickelseimer were let out, with the tools, at a cemetery at the edge of town and the witness, then being the only remaining passenger, moved into the front seat with Funderburke, and protected the gasoline from spilling. They went through town to the frame building which had been selected to be burned, behind a large church. The witness got out at the front of the building and Funderburke went on in the automobile after instructing the witness how to get back to Blackwell. The door of the building was locked and the witness went to a side window, tore off the screen, raised the sash and poured the gasoline inside; he stepped back and threw in a lighted match, setting the fire which blazed immediately. He ran down the street, through a broom sedge field, pursuant to Funderburke's directions, and found Blackwell waiting according to plan. Blackwell told him that he had heard two shots, which the witness had not. Pickelseimer then arrived and said to the witness and Blackwell that they (referring to himself and Wilson) were caught and he thought Wilson was shot, which the witness understood was in the drug store. Then Funderburke arrived in his automobile and was informed by Pickelseimer that the latter thought Wilson had been shot, that he last saw him as he went over a fence. Funderburke then took the three others there in his automobile, let the witness and Pickelseimer out on Crowder Mountain Road and took Blackwell on to Gastonia or somewhere, saying that he (Funderburke) was going back to Clover to ascertain whether Wilson was shot. The witness and Pickelseimer waited in the woods until daylight when Funderburke returned and said that Wilson had not been shot or, at least, that he had not seen him in Clover. Funderburke then took the witness and his companion, Pickelseimer, to Skipper's in his automobile. Farther down the road they met Wilson in Skipper's Ford automobile. He informed them that he had walked from Clover to Gastonia. He had tied a handkerchief about a wound on his arm and said that he had been either cut or shot. Funderburke then carried the witness back to Gastonia. Later he was taken into custody, as Wilson was afterward, and imprisoned in Gastonia for nineteen days before he was brought to this State. When Wilson was placed in jail with him in Gastonia Wilson told him that he had pleaded guilty and told the officers the truth and that the witness should do the same, which he did. Afterward, in the South Carolina jail, the witness signed a statement. The intended loot from the drug store, which the witness did not recall whether was $500 in cash or $500 worth of narcotics, was to have been divided into five shares, between the five participants who have been named.

Another witness for the State was the night watchman who was guarding the four Clover liquor stores which are located along the Gastonia road. Nearby is the Clover Grill which was formerly operated by Funderburke, now by another; both had keys. The witness saw Funderburke in his Buick automobile at the filling station on the night of the fire. He went in the station, came back and talked to someone in the automobile, operated the gasoline pump a second time when gasoline was not being put into the tank of the automobile. It was driven off toward Gastonia and in about twenty minutes the fire alarm sounded. When at the fire the witness heard two shots and shortly afterward Funderburke returned to the Grill alone and invited the witness to have a coca-cola with him, then drove off.

One of the two Clover policemen who were on duty at the time of the fire testified that they were watching the drug store when the fire alarm sounded and they went to the fire. One remained but the other, who testified, returned in three or four minutes to the rear of the store where he found that the screen door had just been torn. As he jumped out of his automobile someone ran out of the store and dropped a flash light, whereupon the witness shot at him. The Chief of Police testified as to the relative locations of the store and the warehouse, about two and a half blocks apart, that the latter building was insured for $3500 and about $6000 worth of uninsured paint was stored in it, and all destroyed by the fire. The cemetery, referred to in the testimony of Armstrong, is about two blocks behind the store. The Clover Grill, owned by the appellant Funderburke, recently leased to another, is a rough place. It has been raided several times and liquor found there and Funderburke had been charged with gambling. He is usually out at night in his automobile, quoting, 'until the wee hours of the morning', and has not worked since he leased the Grill to another. He is drawing disability for battle injuries.

The fact that the State did not include in the indictment the two accomplices who were imprisoned beyond the jurisdiction is not important. State v. Fley, 2 Brev. 338, 4 Am.Dec. 583; annotation, L.R.A.1915E, 608. And the accomplice who testified was a competent witness. Corroboration, which was present with respect to appellant Funderburke at least, was not essential. State v. Sowell, 85 S.C. 278, 67 S.E. 316; State v. Whaley, 113 S.C. 103, 101 S.E. 568; State v. Johnson, 156 S.C. 63, 152 S.E. 825; State v. Bagwell, 201 S.C. 387, 23 S.E.2d 244.

The complex plot of appellants and their accomplices and the respective parts which they played come within the following from the opinion in State v. Gilbert, 107 S.C. 443, 93 S.E. 125: 'If several persons in pursuance of a common design to commit an unlawful act, whether it be a felony or misdemeanor, set out together or in small parties, and each takes the part agreed upon or assigned him, some to commit the act, others to watch at proper distances and stations to prevent interference or surprise or to encourage the commission of the unlawful act or to favor, if necessary, the escape of those immediately engaged in the commission of the unlawful act, under these circumstances, if the unlawful act is committed, the act of one is the act of all and all are presumed to be present and guilty; for this would be in pursuance of a common purpose in a common cause with them each operating in his station at one and the same instant to arrive at a common end. The act of each would tend to give countenance, encouragement, and protection to the whole gang and to insure the success of the common undertaking in the commission of the unlawful act. * * * If they...