State v. Davis

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtJONES
Citation70 S.E. 811,88 S.C. 229
PartiesSTATE. v. DAVIS et al.
Decision Date27 March 1911

70 S.E. 811
88 S.C. 229

STATE.
v.
DAVIS et al.

Supreme Court of South Carolina.

March 27, 1911.


1. Conspiracy (§ 23*)—Criminal "Conspiracy"—Acts Constituting.

An indictment lies for criminal conspiracy to use the automobile of another without his consent; a "conspiracy" being a combination of persons to accomplish a criminal or unlawful object, or an object neither criminal nor unlawful by criminal or unlawful means, amounting to a civil wrong.

[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. § 30; Dec. Dig. § 23.*

For other definitions, see Words and Phrases, vol. 2, pp. 1454-1461; vol. 8, p. 7613.]

2. Indictment and Information (§ 110*) — Language of Statute—Requisites.

An indictment alleging that accused willfully, unlawfully, and maliciously injured the automobile of another of a specified value, the injury amounting to a specified sum, is substantially in the language of the statute, and sufficiently indicates the cause and nature of the accusation within Cr. Code 1902, § 56.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. § 110.*]

3. Highways (§ 186*)—Offenses Incident to Travel—Evidence.

Where several persons agreed to take the automobile of another without his consent for a ride on a public highway and the machine was operated at a reckless speed, they were guilty of reckless driving without reference to the person actually controlling it.

[Ed. Note.—For other cases, see Highways, Dec. Dig. § 186.*]

4. Conspiracy (§ 47*)—Criminal Conspiracy —Evidence.

On a trial for criminal conspiracy to use the automobile of another without his consent, evidence held to justify a finding of a concurrence of mind on the part of defendants to make unlawful use of the automobile, justifying a conviction.

[Ed. Note.—For other cases, see Conspiracy, Dec. Dig. § 47.*]

5. Criminal Law (§ 424*) — Conspiracy — Declarations of Conspirator—Admissibility.

Where there is some evidence of a conspiracy, a declaration of a conspirator subsequent to the transaction is admissible as against himself, but is not admissible against co-couspira-tors.

[Ed. Note.—For other cases, see Criminal Law Cent. Dig. §§ 1002-1010; Dec. Dig. § 424.*]

6. Criminal Law (§ 778*)—Instructions-Burden of Proof.

Where the court charged that the state must prove the offense beyond a reasonable doubt, a charge that the jury might find all defendants not guilty, if the state failed to make out its case, was not misleading as shifting the burden of proof from the state to defendants.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1849; Dec. Dig. § 77S.*]

7. Criminal Law (§ 1147*)—Punishment— Review.

The Supreme Court has no jurisdiction on appeal to correct a sentence on the ground that it is excessive, where it is within the limits prescribed by law for the discretion of the trial court, and is not the result of partiality, prejudice, oppression, or corrupt motive.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3072-3073; Dec. Dig. §

8. Criminal Law (§ 1037*)—Improper Argument of State's Solicitor.

To warrant the Supreme Court to grant a new trial because of improper argument of the state's Solicitor, it must appear that the trial court was requested to restrain the Solicitor,

[70 S.E. 812]

and that the language was so flagrant a breach of fair discussion as to make it an abuse of discretion for the trial court to fail to act.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2645; Dec Dig. § 1037.2-*]

9. Criminal Law (§ 720*) — Argument of State's Solicitor—Evidence.

Where the evidence showed that defendants had been in a restaurant which was a "blind tiger, " and that they were drunk, the statement of the state's Solicitor in his argument that the defendants were drinking at the restaurant was not outside of the record.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 720.*]

10. Criminal Law (§ 720 1/2*)—Argument of State's Solicitor—Evidence.

An expression of the opinion of the state's Solicitor in his argument, based on his view of the testimony in the case, is not ground for reversal.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1677; Dec. Dig. § 720 1/2.*]

11. Malicious Mischief (§ 7*)—Elements of Offense.

On a trial for malicious mischief, the state need not show personal ill will against the owner, but malice may be inferred from the willful doing of an unlawful act without just cause or excuse, and willfulness and malice may be inferred when the unlawful act is done in a wanton and reckless spirit, showing a mind disposed to mischief.

[Ed. Note.—For other cases, see Malicious Mischief, Cent. Dig. § 13; Dec. Dig. § 7.*]

12. Criminal Law (§ 762*)—Instructions-Charge on the Facts.

An instruction, on a trial for malicious mischief, based on the act of defendants using an automobile without the consent of the owner, and recklessly driving it, that, if defendants drove the automobile so regardless of the rights of the owner as not to know and not to care whether they smashed it up, and while so recklessly driving it was wrecked, they were presumed as intending to smash it up, because that was the reasonable consequence of their act, was not objectionable as a charge on the facts.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 762.*]

13. Criminal Law (§ 959*) — Motion for New Trial—Argument.

The time for arguing a motion for new trial is under the control of the trial court, and it is not error to force counsel to argue the motion without permitting him to prepare therefor.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2407; Dec. Dig. § 959.*]

Appeal from General Sessions Circuit Court of Charleston County; Robt. Aldrich, Judge.

"To be officially reported."

Louis Davis and others were convicted of crime, and they appeal. Affirmed.

Paul Mdcmillan and Geo. H. Momeier, for appellants.

Solicitor John H. Peurifoy, for the State.

JONES, C. J. The defendant Louis Davis was chauffeur for Dr. Edward F. Parker in the city of Charleston. On Saturday evening, January 29, 1910, Davis was directed to put the automobile in the garage and lock it up. This instruction was disregarded, and at 10:30 o'clock that night Davis drove the auto to a restaurant in the city and there met his chums, the defendants Henry Field and Robert Smith. After remaining at the restaurant until near 12 o'clock, the defendants got into the auto and agreed to go out for a spin upon the Meeting Street road, a public highway leading north from the city. They soon overtook a wagon drawn by a horse and occupied by Edward Johnson and his little son, on their way home from Charleston. Johnson, hearing the approach of the machine, to get out of the way drove the horse and wagon upon the trolley track running parallel with the highway, but the auto, going at a rapid speed, 35 to 40 miles an hour and wobbling from side to side of the road, according to Johnson's testimony, struck and demolished the wagon, knocking out the occupants, fortunately without serious injury, and was itself badly wrecked.

The defendants were indicted under four counts; the first charging conspiracy to do an unlawful act, the taking of the automobile and the gasoline in the tank for the use of defendants, without the knowledge and against the will of the owner; the second charging larceny of the gasoline consumed; the third charging malicious mischief in maliciously injuring the automobile; and the fourth charging reckless driving of an automobile upon the highway.

The jury were instructed to find a verdict of not guilty on the second count, larceny, which they did; but they found the defendants guilty on the first, third, and fourth counts. The defendants were sentenced to imprisonment for five years.

Upon exception to refusal of the motion to quash the indictment and exception to the charge, appellants make the point that an indictment will not lie for...

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36 practice notes
  • Commonwealth v. Dyer
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 2, 1923
    ...84 Va. 927, 6 S. E. 620,10 Am. St. Rep. 895;State v. Hardin, 144 Iowa, 264, 267, 120 N. W. 470,138 Am. St. Rep. 292;State v. Davis, 88 S. C. 229, 232, 70 S. E. 811,34 L. R. A. (N. S.) 295;State v. Assurance Co., 251 Mo. 278, 158 S. W. 640,46 L. R. A. (N. S.) 955, Ann. Cas. 1915A, 247;State ......
  • Cochran v. Gritman
    • United States
    • United States State Supreme Court of Idaho
    • December 23, 1921
    ...R. A., N. S., 575; Miller v. Nuckolls, 77 Ark. 64, 113 Am. St. 122, 7 Ann. Cas. 110, 91 S.W. 759, 4 L. R. A., N. S., 149; State v. Davis, 88 S.C. 229, 70 S.E. 811, 34 L. R. A., N. S., 295.) The court having immediately admonished the jury that they must not consider this statement of respon......
  • Halloway v. Halloway, 34281
    • United States
    • Mississippi Supreme Court
    • November 25, 1940
    ...92 Va. 627, 245 S.E. 267, 32 L. R. A. 220; Baltimore, etc., R. Co. v. Mackey, 57 U.S. 72, 15 S.Ct. 491, 39 L.Ed. 624; State v. Davis, 88 S.C. 229, 70 S.E. 811, 34 L. R. A. (N. S.) 295; Gidding v. Freedley, 128 F. 355, 63 C. C. A. 85, 65 L. R. A. 327; Montgomery v. Crosthwait, 90 Ala. 553, 8......
  • Paradis v. Charleston Cnty. Sch. Dist., Appellate Case No. 2018-002025
    • United States
    • United States State Supreme Court of South Carolina
    • May 19, 2021
    ...two or more persons for the purpose of accomplishing an unlawful object or lawful object by unlawful means."); see also State v. Davis , 88 S.C. 229, 232, 70 S.E. 811, 812–13 (1911) ("[T]he description which seems to have the widest recognition and approval by the authorities declare a crim......
  • Request a trial to view additional results
36 cases
  • Commonwealth v. Dyer
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 2, 1923
    ...84 Va. 927, 6 S. E. 620,10 Am. St. Rep. 895;State v. Hardin, 144 Iowa, 264, 267, 120 N. W. 470,138 Am. St. Rep. 292;State v. Davis, 88 S. C. 229, 232, 70 S. E. 811,34 L. R. A. (N. S.) 295;State v. Assurance Co., 251 Mo. 278, 158 S. W. 640,46 L. R. A. (N. S.) 955, Ann. Cas. 1915A, 247;State ......
  • Cochran v. Gritman
    • United States
    • United States State Supreme Court of Idaho
    • December 23, 1921
    ...R. A., N. S., 575; Miller v. Nuckolls, 77 Ark. 64, 113 Am. St. 122, 7 Ann. Cas. 110, 91 S.W. 759, 4 L. R. A., N. S., 149; State v. Davis, 88 S.C. 229, 70 S.E. 811, 34 L. R. A., N. S., 295.) The court having immediately admonished the jury that they must not consider this statement of respon......
  • Halloway v. Halloway, 34281
    • United States
    • Mississippi Supreme Court
    • November 25, 1940
    ...92 Va. 627, 245 S.E. 267, 32 L. R. A. 220; Baltimore, etc., R. Co. v. Mackey, 57 U.S. 72, 15 S.Ct. 491, 39 L.Ed. 624; State v. Davis, 88 S.C. 229, 70 S.E. 811, 34 L. R. A. (N. S.) 295; Gidding v. Freedley, 128 F. 355, 63 C. C. A. 85, 65 L. R. A. 327; Montgomery v. Crosthwait, 90 Ala. 553, 8......
  • Paradis v. Charleston Cnty. Sch. Dist., Appellate Case No. 2018-002025
    • United States
    • United States State Supreme Court of South Carolina
    • May 19, 2021
    ...two or more persons for the purpose of accomplishing an unlawful object or lawful object by unlawful means."); see also State v. Davis , 88 S.C. 229, 232, 70 S.E. 811, 812–13 (1911) ("[T]he description which seems to have the widest recognition and approval by the authorities declare a crim......
  • Request a trial to view additional results

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