State v. Edens

• Decision Date: 27 November 1978
• Docket Number: No. 20819,20819
• Citation: State v. Edens, 250 S.E.2d 116, 272 S.C. 130 (S.C. 1978)
• Parties: The STATE, Respondent, v. Harry Dean EDENS, Appellant.
• Court: South Carolina Supreme Court

Page 116

250 S.E.2d 116

272 S.C. 130

The STATE, Respondent, v. Harry Dean EDENS, Appellant.

No. 20819.

Supreme Court of South Carolina.

Nov. 27, 1978.

Thomas H. Pope and Thomas H. Pope, III, of Pope & Schumpert, Newberry, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Joseph R. Barker, Columbia, for respondent.

LEWIS, Chief Justice:

Appellant was charged in four indictments with the offense of forgery. He was convicted on two of the charges and appeals. His present counsel did not represent him in the trial of the case. Error is assigned in (1) permitting an expert witness for the State to allegedly testify beyond his area of expertise, and (2) refusing appellant's motion for a new trial on the ground of after-discovered evidence.

During the trial in the lower court, the State presented two witnesses. The first was Mr. Argoe, an assistant attorney general working with the South Carolina Tax Commission, who gave the basis of the present prosecution.

The testimony showed that appellant was a co-executor of the estate of his father who died in 1969. No estate tax return was filed on the estate of his father, and a civil action was brought against appellant and his brother, as co-executors, to secure payment of an estate tax. Mr. Argoe testified that, in the civil action, he prepared a list of Series "E" and "H" Government bonds which he had determined were purchased by appellant's father and which he believed should have been included in the taxable estate. Mr. Argoe further testified that he mailed two copies of these bond listings to appellant by certified mail, return receipt requested.

In the civil action, appellant offered in evidence four affidavits purportedly signed by his father prior to his death which indicated that all of the Series "E" and "H" Bonds, owned by his father, were purchased in trust for his sons. The trial judge ruled, however, that the bonds should be included in the taxable estate and estate taxes were accordingly paid. In addition, the trial judge ordered that the affidavits, submitted by appellant and purportedly signed by his father, be analyzed by the South Carolina Law Enforcement Division.

The basis of the present prosecution is the charge by the State that the affidavits submitted by appellant in the civil action were forged by him.

The second witness offered by the State in this trial was Mr. DeFreeze, an employee of the South Carolina Law Enforcement Division, who, over objection, was qualified as an expert in the field of tool marks and typewriter identification. He admitted that he was not an expert in the field of handwriting or of questioned documents. While objection was interposed to the qualification of the witness as an expert, whether he was qualified as an expert in tool marks and typewriter identification is not an issue in this appeal.

In the course of his expert testimony, the witness DeFreeze was asked to compare the type used in the Tax Commission schedules with that used in the affidavits in question. The witness, however, could not conclusively state that the affidavits and the schedules were prepared with the same typewriter because the affidavits in question were xeroxed copies. He explained in detail why it was impossible for him to positively state that the same typewriter was used in preparing all of the documents. However, he was permitted, over objection, to testify that, based upon a misalignment of columns on the affidavit and certain relationships between the affidavits and the Tax Commission schedules, the affidavits in question contained "cut and paste copies" of the Tax Commission schedules. Obviously, if the conclusion of the witness was correct the affidavits were forgeries.

The objection of appellant to the latter conclusion of the witness was based upon the contention that the witness was testifying beyond his area of expertise in tool marks and typewriter identification. The trial judge overruled the objection, stating that he would leave the matter to the jury and counsel's...