State v. Britt

Decision Date17 December 1959
Docket NumberNo. 17598,17598
Citation111 S.E.2d 669,235 S.C. 395
PartiesSTATE, Respondent, v. William Otis BRITT and Douglas Westbury, Appellants.
CourtSouth Carolina Supreme Court

C. Walker Limehouse, Henry R. Sims, II, Orangeburg, James N. Rahal, Savannah, Ga., Claud N. Sapp, Joseph D. Sapp, Ben M. Sawyer, Jr., Columbia, for appellant.

Julian S. Wolfe, Sol., Orangeburg, for respondent.

MOSS, Justice.

Upon an indictment charging them with the murder of Harry Boyd Ray on September 7, 1958, William Otis Britt and Douglas Westbury, the appellants herein, and Lee von Tilson, were tried at the January, 1959, term of Court of General Sessions for Orangeburg County, South Carolina. Tilson was found guilty of murder with recommendation to mercy, and has not appealed his conviction. The appellants were found guilty of murder and sentenced to death by electrocution. They have appealed to this Court from such conviction and sentence.

The indictment charged the appellants and Tilson with murder, the homicide having occurred in Orangeburg County, South Carolina, on September 7, 1958. The Grand Jury of the county returned a true bill of indictment against the three defendants on September 15, 1958. They were duly arraigned and entered a plea of 'Not Guilty'. A motion for a continuance was made and granted.

This case was called for trial at Orangeburg, South Carolina, on January 5, 1959, and the appellants made motions for (1) Change of venue; (2) Continuance beyond the term; and (3) For severance of the trials of the respective defendants. The motions were fully argued before the Court and denied. The questions raised by the appellants will be considered seriatim.

The ground of the motion for a change of venue was that the appellants could not obtain a fair and impartial trial in Orangeburg County for the reason that certain articles appearing in the newspapers, having a circulation in said county, were prejudicial and would substantially impair the rights of the appellants to be tried before an impartial and dispassionate jury. It was also asserted that these articles appeared in the newspapers on December 16, 1958. The appellants also assert that certain magazines appearing upon the public newstands in the County of Orangeburg carried articles about the case which were detrimental and prejudicial to the rights of the appellants. The appellants also made a motion for a continuance of the case beyond the term on the ground that they could not obtain a fair and impartial trial due to the adverse and hostile public sentiment existing in the county.

This Court has held in numerous cases that a motion for a change of venue is addressed to the discretion of the trial Judge and his disposition of such motion will not be reversed unless it is shown that there was an abuse of such discretion to the prejudice of the appellants. State v. Byrd, 229 S.C. 593, 93 S.E.2d 900; State v. Whitener, 228 S.Ct. 244, 89 S.E.2d 701; State v. Livingston, 233 S.C. 400, 105 S.E.2d 73, and State v. Mouzon, 231 S.C. 655, 99 S.E.2d 672. We have also held that where a defendant applies for a change of venue on the ground that an impartial jury cannot be obtained, it is the duty of the trial Judge to make an examination and inform himself of the truth of the averments, and where, after hearing evidence, the trial Court is satisfied that a fair and impartial jury may be had in the County where the crime was alleged to have been committed, his refusal to change the venue will be sustained, except in the case of an abuse of discretion. State v. Thomas, 198 S.C. 519, 18 S.E.2d 369.

It appears from the record that Harry Boyd Ray was employed as a Highway Patrolman. He was born in Barnwell County and resided with his family in Clarendon County. It was his duty to patrol a small section of the highways in Orangeburg County. There is no showing of any popularity of the deceased in said county.

The motion for a change of venue was supported only by an affidavit of counsel for one of the appellants, and this set forth only a conclusion. The Sheriff of Orangeburg County testified that he had not heard of any threats against the appellants nor anything that would indicate that the passions of the people of the county were aroused against them.

The trial Judge, in connection with the motion for a change of venue, had all of the jurors sworn and he examined them in detail and separately on their voir dire. He examined each as to (1) opposition to capital punishment, (2) relationship to the deceased or to the accused, (3) whether or not they had formed or expressed an opinion as to the guilt or innocence of the accused, or any of them, (4) as to bias or prejudice either for or against the appellants, (5) whether they were conscious of anything that would prevent the jurors from giving a fair and impartial trial under the evidence and the law, and (6) whether any of the jurors had been a member of the Grand Jury that had returned an indictment against the appellants. All of the jurors, with three exceptions, answered each question so propounded in the negative. At the conclusion of the foregoing examination, the trial Judge said: 'I have no evidence whatsoever that they (referring to the appellants) cannot get a fair and impartial trial in this County. As a matter of fact, the overwhelming evidence is to the contrary.' A review of the entire record, in support of the motion for a change of venue, convinces us that the trial Judge wisely exercised his discretion in refusing to grant the motion.

The appellant, Douglas Westbury, requested the trial Judge to propound additional questions to the jurors under the voir dire examination. A review of the proposed questions submitted by the said appellant convinces us that the questions that were propounded to the jurors by the trial Judge, in effect, covered the additional requests. The trial Judge, in our opinion, conformed to Section 38-202 of the 1952 Code of Laws of South Carolina, which provides:

'The court shall, on motion of either party in the suit, examine on oath any person who is called as a juror therein to know whether he is related to either party, has any interest in the cause, has expressed or formed any opinion or is sensible of any bias or prejudice therein and the party objecting to the juror may introduce any other competent evidence in support of the objection. If it appears to the court that the juror is not indifferent in the cause, he shall be placed aside as to the trial of that cause and another shall be called.'

In the case of State v. Bethune, 93 S.C. 195, 75 S.E. 281, 282, this Court said:

'* * * After the statutory questions have been asked and answered, any further examination of a juror on voir dire must be left to the discretion of the trial judge, which is subject to review only for abuse thereof.'

This Court has also held that the scope and limits of the interrogation of a juror on voir dire is within the sound discretion of the Circuit Judge, and it is for him to determine the character of the questions proposed and when the examination shall cease. State v. Carson, 131 S.C. 42, 126 S.E. 757; State v. Nance, 25 S.C. 168, and State v. Coleman, 8 S.C. 237. We conclude that there was no error on the part of the trial Judge in failing to ask the jurors the additional questions proposed by the appellant.

The appellants assert that the trial Judge committed error in refusing to grant a continuance in this case. This Court has held in numerous cases that a motion for a continuance is addressed to the discretion of a trial Judge and his disposition of such motion will not be reversed unless it is shown that there was an abuse of such discretion to the prejudice of the appellant. State v. Lytchfield, 230 S.C. 405, 95 S.E.2d 857, 66 A.L.R.2d 263; State v. Livingston, 223 S.C. 1, 73 S.E.2d 850, and State v. Mishoe, 198 S.C. 215, 17 S.E.2d 142. The basis of the appellants' motions was that they could not obtain a fair and impartial trial because of adverse and hostile public sentiment. What we have heretofore said in discussing the motions for a change of venue is applicable to the motions for continuance. We conclude that there was no error on the part of the trial Judge in refusing the motions made for a continuance.

On the call of this case for trial both appellants moved the Court for a separate trial upon the grounds that the defenses of the appellants are antagonistic to one another; that evidence in favor of one appellant would be admissible on a separate trial and would not be allowed on a joint trial; that evidence incompetent as to one of the appellants and introduced against the other appellant would work prejudicially to the other appellant; and that a confession by one of the appellants, if introduced and proved, would be calculated to prejudice the jury against the other appellant.

It appears from the record that the appellants and Tilson left Charleston, South Carolina on September 5, 1958, and traveled through South Carolina and as far north as Raleigh, North Carolina. It was the united purpose of the three to commit robberies. The three returned to South Carolina on the night of September 6, 1958, and while traveling south on U. S. Highways Nos. 15 and 301, stopped at a restaurant in Orangeburg County. After remaining in the restaurant for sometime, the three entered a motel on said highways and robbed the owners thereof of a large sum of money. The three hurriedly left the scene of the robbery in an automobile with Tilson driving, and approximately one-half a mile south on said highways, the car in which they were riding, was stopped by Harry Boyd Ray, a State Highway Patrolman, evidently for speeding. Each of the appellants, and Tilson, made a written confession. These confessions concur as to many of the facts and details of the death of the patrolman. It was contended by the appellant Britt, and Tilson, that Westbury fired the shots that took the life of the...

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