State v. Britt

• Decision Date: 16 November 1960
• Docket Number: No. 17715,17715
• Citation: 117 S.E.2d 379,237 S.C. 293
• Court: South Carolina Supreme Court
• Parties: STATE, Respondent, v. William Otis BRITT and Douglas Westbury, Appellants.

Page 379

117 S.E.2d 379

237 S.C. 293

STATE, Respondent, v. William Otis BRITT and Douglas Westbury, Appellants.

No. 17715.

Supreme Court of South Carolina.

Nov. 16, 1960.

C. Walker Limehouse, Henry R. Sims, II, Orangeburg, James N. Rahal, Savannah, Ga., for appellant.

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

MOSS, Justice.

The Grand Jury of Orangeburg County did, on September 15, 1958, at a Court of General Sessions, return an indictment charging William Oits Britt and Douglas Westbury, the appellants herein, along with Lee von Tilson, with the murder of Harry Boyd Ray, it being asserted that the homicide occurred in Orangeburg County on September 7, 1958. The three were duly arraigned upon such indictment and entered a plea of 'Not Guilty'. A motion for a continuance was made and granted at the 1958 September term of Court. The case was thereafter called for trial at Orangeburg, South Carolina, on January 5, 1959. The result of this trial was that the appellants herein were found guilty of murder and were sentenced to death by electrocution. Lee von Tilson was found guilty of murder with a recommendation to mercy. The appellants herein, from such conviction and sentence, appealed to the Court, and Lee von Tilson did not appeal from his conviction and sentence. We reversed the conviction of the appellants and remanded the case for a new trial. State v. Britt, et al., 235 S.C. 395, 111 S.E.2d 669.

The case against the appellants was retried at Orangeburg, South Carolina, commencing on January 11, 1960. The appellants were again found guilty of murder and were sentenced to death by electrocution. Following the conviction of the appellants, motions for a new trial were made and denied. Deue notice of intention to appeal to this Court was given. The questions raised by the appellants will be considered seriatim.

When this case was called for trial the appellants made a motion for continuance beyond the term. The ground of the motion for continuance was that an additional venire of jurors had been drawn and the appellants had not had adequate time to properly study this list of additional jurors.

We have held in numerous cases that a motion for a continuance 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. 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. Britt et al., 235 S.C. 395, 111 S.E.2d 669.

It appears from the record that on January 7, 1960, the Clerk of Court for Orangeburg County issued a writ of venire facias, directing and requiring the jury commissioners of said Orangeburg County to draw, as provided by law, the names of twenty extra petit jurors, to appear before the General Sessions Court for said county on January 11, 1960. Pursuant to such writ, twenty extra petit jurors were duly drawn and summoned to serve as extra petit jurors at the term of General Sessions Court for Orangeburg County commencing on January 11, 1960. It appears from the record that one of the counsel for the appellant Westbury was present at the time the extra venire of jurors was drawn. Certainly counsel had from January 7, to January 11, 1960, to make a study of the extra venire of jurors drawn as a foresaid. In the case of State v. Livingston, 223 S.C. 1, 73 S.E.2d 850, 853, denial of a motion for a continuance was upheld where counsel for the defendant had been appointed by the court 'three or four' days prior to the date of trial. It further appears that the trial Judge had all of the jurors, not only on the regular panel but on the extra venire, sworn and he examined them in detail and separately on their voir dire. There was presented for service as jurors only those who qualified upon such voir dire examination. A review of the entire record in support of the motion for a continuance convinces us that the trial Judge committed no error in refusing to grant such motion.

When this case was called for trial both of the appellants made a motion for a severance and separate trial. The appellants assert that their defenses 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 be prejudicial to such other appellant; and that a confession by one of the appellants would be calculated to prejudice the jury against the other appellant. Additionally, the appellant Westbury asserts that if he were granted a separate trial he could offer testimony showing his cooperative attitude in submitting to a lie detector test; that he could impeach the testimony of the appellant Britt by showing his previous convictions of the offenses of robbery and grand larceny. The appellant Westbury also asserts that upon a separate trial he could show that he was the weaker of the two and that he was overpersuaded and dominated by Britt, resulting in the commission of the crime of murder with which he was charged.

When this case was before us upon the previous appeal, we held that a motion for a severance and separate trial on the part of one or more defendants in a case, where several persons are jointly charged with a criminal offense, is addressed to the discretion of the trial Judge, and only abuse of that discretion constitutes reversible error. State v. Britt et al., 235 S.C. 395, 111 S.E.2d 669, 680, and the cases therein cited.

Each of the appellants made a written confession. These confessions concur as to many of the facts and details of the death of the deceased, who was a highway patrolman. It was contended by the appellant Britt that Westbury fired the shots that took the life of the patrolman. Westbury denies that he did fire the fatal shots. The dispute in the confessions as to who fired the fatal shots that took the life of the patrolman is the basis upon which the appellants assert that their defenses were antagonistic. When the confessions of the appellants were offered and received in evidence, the trial Judge properly ruled:

'* * *, any alleged confession, if receivable in evidence, can only be considered as evidence against the party said to have made the confession and against no one else. It cannot be considered as evidence against a co-defendant. I will instruct you again on that. Keep that in mind. Any alleged confession is only evidence, if evidence at all, against the party it is contended made the confession and what is said therein relating to someone else is not evidence against that person.'

Time and time again the trial Judge reiterated such ruling, and in his able charge to the jury, said:

'* * * You are instructed, however, that when two or more persons are charged with a crime and a confession of one implicates the other, you cannot consider it against such other defendant because a confession can only be considered as evidence against the one who made it. Obviously, one defendant cannot by his confession impute, imply or point guilt to another.'

What we said when this case was previously before us is here applicable:

'Where the separate statement or confession of either of these parties implicated the others the trial court properly admitted such statement or confession against the person who made such, and he also correctly ruled that the statement or confession could not be considered against the others. He likewise charged the jury to this effect. State v. Bagwell, 201 S.C. 387, 23 S.E.2d 244 and State v. Jeffords, 121 S.C. 443, 114 S.E. 415.

'In the Jeffords case this Court said:

"The next assignment of error is in allowing confessions of Harrison and Treece to be introduced in evidence, in so far as they contained accusations of Jeffords. The rule is very clear that the confessions must be given as made. If we strike out any part, then the confession ceases to be the confession as made. The rule in such cases is clearly to let all the defendant said be given, and the jury cautioned not to consider it against any one, except the man who makes it. This is unquestionably the rule, and it was strictly and scrupulously followed."

The appellant Westbury asserts that if he were granted a separate trial he could offer testimony showing his cooperative attitude in submitting to a lie detector test. In the previous opinion in this case we held that evidence that one of the appellants refused to take the lie detector test was inadmissible. Reference to the previous opinion is had for authorities supporting such holding. It is our opinion that evidence of the willingness of the appellant Westbury to take a lie detector test was inadmissible whether tried jointly with the appellant Britt or separately. In the case of People v. Carter, 48 Cal.2d 737, 312 P.2d 665, it was held, in a murder prosecution, that the trial court erred in not excluding a statement of the suspect that he was willing to take the lie detector test. In Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442, it was held that since lie detector evidence is not admissible, neither is evidence of professed willingness or refusal, to submit to such test. In Commonwealth v. McKinley, 181 Pa.Super. 610, 123 A.2d 735, it was held that the results of a lie detector test being inadmissible, the offer of the accused to undergo such test was also properly excluded from the jury's consideration. In this connection see Vol. 2, A.L.R.2d Supplement Service, 1960 Issue, at page 1998.

It is also asserted by the appellant Westbury that if he were granted a separate trial that he could impeach the testimony of Britt by showing his previous convictions of the offenses of robbery and grand larceny. This position presupposes that upon a separate trial that Britt would be a witness against the appellant. Certainly...