State v. Brazzell, 16708

• Decision Date: 02 February 1953
• Docket Number: No. 16708,16708
• Court: South Carolina Supreme Court
• Parties: STATE v. BRAZZELL.

Page 573

74 S.E.2d 573

223 S.C. 103

STATE v. BRAZZELL.

No. 16708.

Supreme Court of South Carolina.

Feb. 2, 1953.

R.B. Hildebrand, York, Hayes & Hayes, Rock Hill, for appellant.

Robert W. Hemphill, Sol., Chester, for respondent.

TAYLOR, Justice.

Appellant was tried and convicted of the crime of armed robbery and larceny at the September, 1951, term of General Sessions Court for York County and sentenced to prison for a term of ten years.

L.C. Melton, Hoyt O. Brazzell, Wm. Floyd Beckler, and Kenneth Hovis were jointly indicted with appellant for having with the use of pistols robbed a grocery store operated by W.C. Johnson in the city of Rock Hill, S.C., and one C.C. Johnson, who was then in charge, on the 26th day of January, 1948. Two of the defendants, Floyd Beckler and Kenneth Hovis, had prior to the trial pled guilty. The other three defendants, Melton, Hoyt Brazzell and appellant, Dave Brazzell, were placed on trial; but upon conclusion of the State's testimony, L.C. Melton and Hoyt Brazzell entered pleas of guilty leaving only the appellant, Dave Brazzell, to stand trial. At this stage of the case, motion was made for a directed verdict of not guilty on the grounds that there was insufficient evidence to submit the case to the jury. This motion was overruled and appellant assigns error therein.

A review of the testimony shows that Dave Brazzell is the son of Hoyt Brazzell and the brother-in-law of Melton and that they at that time lived within the same neighborhood in the city of Rock Hill; that appellant had previously owned and operated Brazzell's Grill. One of the witnesses testified that at approximately 5 or 5:30 the afternoon before the robbery the next morning at approximately 3 A.M., he, Beckler, Dave Brazzell, Hoyt Brazzell and Melton met outside Brazzell's Grill and Dave Brazzell stated that had been to Johnson's store and that everything was all right, the money was in the cash register and they could get it. He further stated that it was agreed to split the money five ways although all of the testimony shows that there were only four of them at the time. Upon being further questioned and being confronted with his testimony at the preliminary hearing to the effect that the meeting was inside Brazzell's Grill and that there were lots of people present at the time and at which time he was also confronted with fact that Brazzell's Grill had previously burned to the ground, he then changed his statement to we met "outside the door in the yard." About 11:30 that night without the knowledge or consent of appellant they picked up one Hovis and after revealing their plans to him accepted him as partner in the scheme and proceeded to Melton's house, secured the masks, two pistols and the clothes they were to wear and proceeded to carry out the planned robbery at approximately 3 A.M. Thereafter, they returned to Melton's house, burned the masks, some of the clothes and the checks obtained in the robbery, then counted and divided the money five ways according to one witness' testimony (four according to another), which amounted to $125 each. This witness' testimony further shows that Melton counted the money and gave each $125 but kept two shares to himself. The State's theory is that the extra $125 was turned over to appellant by Melton, but there is no testimony to support this unless it is where witness Beckler stated that Dave Brazzell never mentioned it to him thereafter but that he knew he, appellant, got the $125 or he would have said something about it. He then stated that he did not see appellant receive any of the money, therefore, this was only a conclusion on his part. The four heretofore named, not including appellant, stole a car from the King Motor Company to use in the carrying out of their plans and filled it with gasoline at Kilroy's Service Station, operated by appellant, which was located directly across the street from the site of Brazzell's Grill and did not pay for the gasoline, the implication being that appellant furnished the gasoline, but appellant was not present at the time, and there is no testimony as to knowledge thereof on his part and Melton who pled guilty testified after the motion for a directed verdict was made and refused that he later paid for the gasoline. The foregoing is the only testimony in the record connecting the appellant in any way with the crime and even this cannot be reconciled with the undisputed facts. If appellant went to the store that afternoon...