State v. Crowe, 19404

• Decision Date: 21 April 1972
• Docket Number: No. 19404,19404
• Citation: 188 S.E.2d 379,258 S.C. 258
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Niles CROWE and Horace Wright, Jr., Appellants.

Page 379

188 S.E.2d 379

258 S.C. 258

The STATE, Respondent, v. Niles CROWE and Horace Wright, Jr., Appellants.

No. 19404.

Supreme Court of South Carolina.

April 21, 1972.

Richard T. Townsend and Marshall W. Abercrombie, Laurens, for appellants.

Sol. William T. Jones, Greenwood, for respondent.

LEWIS, Justice:

At a term of the General Sessions Court for Laurens County in August 1970, the appellants, Niles Crowe and Horace Wright, Jr., were convicted of the murder of James E. Spearman, a resident of Laurens County. Crowe received a death sentence; and Wright, upon a recommendation of mercy by the jury, was sentenced to life imprisonment. Both have appealed. The theory of the State's case against Crowe was that he fired the fatal shot and, as to Wright, that he was present, aiding and abetting in the commission of the crime.

While there was direct evidence of Crowe's participation in the crime, the testimony against Wright was largely circumstantial. It is undisputed that appellant Crowe fired the fatal shot, but he testified that he shot in self defense. The jury rejected his contention and found that he was guilty of murder. The record amply supports this finding and Crowe does not here contend otherwise. Appellant Wright, however, contends that the evidence was insufficient to sustain his conviction, and this presents the first question to be decided.

In determining whether the evidence was sufficient to support Wright's conviction, the testimony and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the State. Our review of the testimony is governed by this principle.

Appellants were cousins and good friends. After remaining together throughout most of the afternoon of November 22, 1969, they went to the Goodfellows Club, near Laurens, South Carolina, in Crowe's automobile, arriving there about 10 o'clock p.m. The club was an establishment where poker games were operated and this fact was known to appellants.

When appellants entered the club, there was a pocker game in progress, operated by Vernon Caldwell, with seven participants, and considerable sums of money in the game and in the possession of the players. At no time during the evening did either of the appellants participate in the game, but they were in and about the poker room.

Appellants carried pistols with them to the club and, about 11:30 p.m., both showed their weapons to a third party. Crowe had on his person a loaded .38 calibre pistol and Wright a .25 calibre automatic. At that time, Crowe asked Wright if his pistol had a bullet in the chamber, to which Wright replied: 'I've got one. I always stay ready.'

Shortly after 12 o'clock, about thirty to forty minutes after appellants had exhibited their weapons, Crowe, while standing in an entrance doorway, began shooting into the poker room with his .38 calibre pistol. He fired five or six shots into the room, killing the deceased. Two .38 calibre bullets were later removed from the body of the deceased and identified by an expert as having been fired from Crowe's pistol.

During the shooting, witnesses heard the sound from the firing of a smaller calibre weapon. Officers later found two .25 calibre empty cartridges on the floor and these were identified by an expert as having been fired from the .25 calibre automatic gun, previously seen in Wright's possession.

Both weapons were found in the possession of Crowe at the time of his arrest, and he testified that they were owned by him. He further testified that both guns were in his possession at the time of the shooting, but did not remember whether he fired the .25 automatic. Crowe, on leaving, stopped at the front door of the building and reloaded the .38 calibre weapon.

While Crowe was shooting into the poker room, he turned to someone, unidentified, and said, 'You start getting their pockebooks.' When the shooting began, the participants in the pocket game hurriedly ran out of the building for safety and left considerable money. The deceased had placed money in his pocket shortly before the shooting began. Although the deceased had money in his pocket and considerable money was left by the fleeing players, no money was subsequently found in the poker room, except some small change, and the deceased was found lying on the floor, with his empty pockets turned wrong side out.

Immediately after the shooting, Crowe sent Wright ahead to start the automobile while he held back, as he said, to keep anyone from shooting him. Both hurriedly left the scene in Crowe's automobile with Wright driving.

At the time of the incident, no one saw Wright or saw him shooting a pistol. The testimony, however, placed him in close proximity to the poker room a few minutes before the shooting started and he and Crowe hurriedly left the building together after the shooting stopped.

'Under the modern law, he who is present at a homicide, aiding and abetting, is guilty of the homicide as a principal, even though another does the killing.' 40 Am.Jur.2d, Homicide, Section 28, p. 319. State v. Francis, 152 S.C. 17, 149 S.E. 348, 70 A.L.R. 1133.

It is further well settled that, if two or more combine together to commit an unlawful act, such as robbery, and, in the execution of that criminal act, a homicide is committed by one of the actors, as a probable or natural consequence of the acts done in pursuance of the common design, all present participating in the unlawful undertaking are as guilty as the one who committed the fatal act. This principle was stated in State v. Cannon, 49 S.C. 550, 27 S.E. 526: 'The common purpose may not have been to kill and murder, but if it was unlawful, as, for instance, to break in and steal, and in the execution of this common purpose a homicide is committed by one, as a probable or natural consequence of the acts done in pursuance of the common design, then all present participating in the unlawful common design are as guilty as the slayer.'

It is reasonably inferable from the testimony that Crowe and Wright, relatives and friends, went to the poker club, with robbery as a motive, each armed with a weapon, Crowe with a .38 calibre pistol and Wright with a .25 automatic; that while Crowe was firing into the poker room, Wright fired his pistol, following which the robbery of the money from the poker room and the pockets of the deceased occurred; and that, in order to make their getaway, Wright went ahead to start the automobile, while Crowe stayed behind to cover their escape.

The facts and circumstances in evidence amply supported the charge that Wright was present, aiding and abetting in the commission of the crime. As such, he was guilty as a principal.

It is next contended that the trial judge erred in refusing the motion of appellants for a change of venue. The motion was based upon the ground that a fair trial could not be had in Laurens County because of the prior newspaper publicity and the fact that the deceased was well known and popular, causing an unusual amount of discussion of the case in the community.

A motion for a change of venue is addressed to the sound discretion of the trial judge. We find no abuse of discretion in the refusal of the motion in this case.

The trial judge conducted a careful voir dire examination of the jurors to determine the existence of any bias, prejudice, or adverse influence from newspaper publicity and prior discussions of the case in the community. The jurors selected to try the case stated under oath that they were not biased or prejudiced and could give the defendant a fair and impartial trial. It was apparent from the examination of the jurors that the claimed prejudice from newspaper publicity and discussions of the case in the community was not established.

Appellants also charged that the trial judge erred in refusing their motion for separate trials. While the record indicates that such motion was made only by appellant Wright, the Statement agrees that the motion was made by both appellants. Irrespective however, since Crowe received a death sentence, we have considered the motion as if made by both.

Since appellants were jointly charged with the murder of the deceased, they were not entitled to be tried separately as a matter of right. Their motion for separate trials was addressed to the discretion of the trial judge, and only an abuse of that discretion constitutes reversible error. State v. Harvey, 253 S.C. 328, 170 S.E.2d 657.

We find no abuse of discretion in the refusal of the motion for a severance and separate trials. The record discloses that Crowe fired the fatal shot and that Wright was present aiding and abetting. Crowe entered plea of self defense and testified. His testimony was generally favorable to Wright. Wright did not testify or offer any testimony, but relied upon his claim that the State had failed to prove his guilt. These defenses were not antagonistic and could be asserted in a joint trial without material prejudice to either defendant. The record discloses no legal prejudice.

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