State v. Davis

• Decision Date: 27 March 1911
• Citation: 70 S.E. 811,88 S.C. 229
• Parties: STATE v. DAVIS et al.
• Court: South Carolina Supreme Court

70 S.E. 811

88 S.C. 229

STATE v. DAVIS et al.

Supreme Court of South Carolina

March 27, 1911

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 Macmillan 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 criminal conspiracy to use the automobile of another without his consent. Contention is made that there can be no criminal conspiracy, except (1) to commit an indictable offense; (2) to effect an object by indictable means; (3) to affect the community injuriously. This contention is not without authority, but we hold that the law in this state does not so restrict criminal conspiracy.

In State v. Ameker, 73 S.C. 338, 53 S.E. 487, the court approved the following definition of conspiracy: "The combination of two or more persons to do something unlawful, either as a means or as an ultimate end (Com. v. Waterman, 122 Mass. 43); or, as remarked by 6 A. & E. Ency. p. 832: 'Conspiracy, therefore, is rather described than defined, and the description which seems to have the widest recognition and approval by the authorities declare a criminal conspiracy to consist of a combination between two or more persons for the purpose of accomplishing a criminal or unlawful object, or an object neither criminal nor unlawful by crim criinal or unlawful means."' In State v. Eastern Coal Co., 29 R.I. 254, 70 A. 1, 132 Am. St. Rep. 817, the court declared: "Criminal conspiracy is a combination to do something unlawful, either as a means or an end." In 2 Bishop, Crim. Law, par. 180, treating of conspiracy, the author says: "The reader should bear in mind that 'unlawful' means 'contrary to law,' and many things are contrary to law, while not subjecting the doer to criminal prosecution." Therefore, in the language of Colkburn, C.J.: "It is not necessary, in order to constitute a conspiracy, that the acts agreed to be done should be acts which, if done, would be criminal. It is enough if the acts agreed to be done, although not criminal, are wrongful; that is, amount to a civil wrong." In Clark's Criminal Law the author, at page 119, says: "Most of the cases of conspiracy which arise are doubtless cases in which the acts contemplated are indictable, either at common law, as in case of conspiracy to murder, rob, or cheat by false weights and measures, or under statutes, as in case of conspiracies to obtain property by false pretense; but according to the great weight of authority acts need not necessarily be indictable at all, in order that a conspiracy to commit them may be criminal. It is sufficient if they are unlawful." Roscoe, Criminal Evidence, declares that a "conspiracy is an agreement between two or more persons to do that which is unlawful."

While there is no statute making it criminal to use the automobile of another without his consent, it was clearly unlawful to so use it, thereby subjecting him to injury by loss by consumption of gasoline and the wear and tear of the machine. Hence, under the definition given, the offense was indictable. It is true the cases of conspiracy heretofore presented in this state involved some injury to the public, as a conspiracy to injure others by defeating the course of public justice through the destruction of a will (State v. De Witt, 2 Hill, 282, 27 Am. Dec. 371); the extortion of a deed by perverting legal process (a peace warrant) as a means of accomplishment (State v. Shooter, 8 Rich. Law, 72); a conspiracy to cheat and defraud the state ( State v. Cardoza, 11 S.C. 195); a conspiracy to disturb the peace at a public picnic (State v. Ameker, 73 S.C. 332, 53 S.E. 484). It is clear all these cases come within the law of conspiracy, but we do not understand these cases as restricting the law of conspiracy to unlawful acts which affect the community or public, as distinguished from the individual.

The next contention is that the court erred in not quashing the indictment as to malicious mischief, on the ground that it was not alleged that the act was willful, and that the motive and cause of accusation was not fully alleged. The indictment charged that on January 29, 1910, at Charleston, S. C., the defendants named "did willfully, unlawfully, and maliciously injure a certain automobile, the value of $4,000, the injury amounting to $500, of the proper goods and chattels of one Edward F. Parker, against the form of the statute," etc. The indictment was substantially in the language of the statute and sufficiently indicated the cause and nature of the accusation, within the provision of section 56, Criminal Code 1902.

At the request of defendant's counsel the court instructed the jury that in order to convict one of reckless driving they must be satisfied that the automobile was being driven by that person, and by no other, because one cannot be guilty of reckless driving if he is not in control of the automobile. It is now claimed that the motion for new trial made in behalf of defendant Davis should have been granted because the jury disregarded the charge.

The witness Johnson testified that the right man (Louis Davis the chauffeur) was not running the automobile at the time, and that, after his wagon was struck, as soon as he got up he saw Robert Smith still had the wheel in this hand. Smith denied this, stating that he could not drive an automobile. The testimony shows that the three defendants agreed to take the automobile out on the highway for a ride, and at that time Louis Davis was driving. Whether Davis or Smith was driving at the moment of the collision was not vital. Davis may have been instructing or aiding Smith, a novice, to run the machine, or Davis alone may have been...