State v. Dukes

• Court: South Carolina Supreme Court
• Writing for the Court: MOSS
• Citation: State v. Dukes, 256 S.C. 218, 182 S.E.2d 286 (S.C. 1971)
• Decision Date: 08 June 1971
• Docket Number: No. 19231,19231
• Parties: The STATE, Respondent, v. George Walter DUKES and King Farrison Watkins, Appellants.

Page 286

182 S.E.2d 286

256 S.C. 218

The STATE, Respondent, v. George Walter DUKES and King Farrison Watkins, Appellants.

No. 19231.

Supreme Court of South Carolina.

June 8, 1971.

Howard P. King, Linwood S. Evans, Jr., Sumter, for appellants.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Emmet H. Clair and John P. Wilson, Columbia, Solicitor R. Kirk McLeod, Sumter, for respondent.

MOSS, Chief Justice:

The sole question for determination is whether the Appellants, George Walter Dukes and King Farrison Watkins, were denied their right to a speedy trial as guaranteed under the Constitutions of the United States and of this State.

The appellants, along with one Jack Simmons Horger, were arrested December 8, 1969 in Sumter County and charged with housebreaking and grand larceny. The appellants admitted being present during the commission of the above offenses but allege that they were entrapped into committing such by one Arthur Sanders Durant, who they claim acted as an agent of the Sumter County Sheriff's Department and the South Carolina Law Enforcement Division in procuring their commission of the aforesaid offenses.

The case against the appellants and Horger initially came on for trial at the 1970 February term of the Court of General Sessions for Sumter County. The appellants were represented by appointed counsel and were prepared for trial, as was the State. The appellants had subpoenaed Durant to testify in their behalf, and he was present in the courtroom when the case was called.

It appears that Horger had retained the services of a member of the Sumter Bar to represent him, but shortly before the trial, due to a conflict of interests, this attorney was relieved by order of the court. Thereafter Horger engaged the services of a Columbia attorney, and this attorney moved for a continuance on the ground of inadequacy of time to prepare for trial. The trial judge granted this motion over the objection of the appellants. The appellants then moved for a severance and requested that the case against them be immediately tried. The trial judge refused this motion and the case was continued until the 1970 April term of court. The appellants, when their motion for a severance was denied, requested the trial judge to place Durant under bond or incarcerate him to insure his presence at the April trial. This request was refused.

When the case was called for trial at the April, 1970 term of the Court of General Sessions the appellants moved to quash the indictment against them on the grounds that the court's refusal, at the 1970 February term of court, to grant a severance and allow them to be tried was a denial of their right to a speedy trial and such delay was prejudicial to them because the witness Durant was unavailable to testify in their behalf. This motion was refused. The appellants did not move for a continuance due to the absence of the witness Durant, even though the trial judge indicated he would grant such a motion. The appellants, with full knowledge of the absence of the witness Durant whom they alleged to be a material witness, elected to go to trial. The appellants, while contending that Durant was a material witness in their behalf, made no showing of what facts he would testify to if present.

The case was tried and the appellant Dukes was found guilty of housebreaking and grand larceny and the appellant Watkins was found guilty of grand larceny. The appellants then moved for an arrest of the judgment of conviction and for a new trial, such was refused and this appeal followed.

We have held that a motion for a continuance and severance is a matter addressed to the sound discretion of the trial judge and only an abuse of such would constitute reversible error. State v. Harvey, 253 S.C. 328, 170 S.E.2d 657. We find no error on the part of the trial judge in granting the motion of the defendant Horger for a continuance in order to allow his attorney adequate time to prepare for trial.

The refusal of the trial judge to grant separate trials to the appellants, who were indicted along with Horger, and jointly charged with housebreaking and grand larceny, was not prejudicial where the charges arose out of the same facts and circumstances and where there was no conflict in the defenses interposed. We conclude that there was no abuse of discretion on the part of the trial judge in refusing the motion of the appellants for a severance or a separate trial.

The fundamental law of this state reserves to each defendant the right to a speedy trial. Art. I, Sec. 18, of the 1895 Constitution. The Sixth Amendment to the Constitution of the United States contains a like provision and it applies to state criminal cases by virtue of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.

In Wheeler v. State, 247 S.C. 393, 147 S.E.2d...