State v. Fleming, No. 18121

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBRAILSFORD; TAYLOR
Citation243 S.C. 265,133 S.E.2d 800
Docket NumberNo. 18121
Decision Date12 November 1963
PartiesThe STATE, Respondent, v. Billy S. FLEMING and Isaac Tindal, Appellants.

Page 800

133 S.E.2d 800
243 S.C. 265
The STATE, Respondent,
v.
Billy S. FLEMING and Isaac Tindal, Appellants.
No. 18121.
Supreme Court of South Carolina.
Nov. 12, 1963.

Page 802

[243 S.C. 267] Jenkins & Perry, Columbia, Ernest A. Finney, Jr., Sumter, for appellants.

[243 S.C. 268] Solicitor R. Kirk McLeod, Sumter, for respondent.

BRAILSFORD, Justice.

At the January, 1963, term of the Court of General Sessions for Clarendon County, the grand jury indicted Billy S. Fleming, Isaac Tindal and John S. Holden, charging that, between April 15 and August 30, 1959, they 'did unlawfully and feloniously combine, conspire and confederate to defraud the Ocean City Life Insurance Company * * * by means of a scheme to have issued to divers persons, policies of (life) insurance * * * (such persons) being unaware and not having applied for any of said insurance and their signatures having been placed upon the applications * * * by the said John S. Holden at the request of Billy S. Fleming, the premiums therefor having been paid by the said Isaac Tindal * * *, all for the purpose of defrauding the Ocean City Life Insurance Company * * *.'

In six numbered sub-paragraphs the indictment then alleges specific instances in which policies of life insurance were procured on forged applications, without the knowledge of the persons on whose lives the policies were issued.

Of the three alleged conspirators, Fleming and Tindal were tried and convicted. (Holden testified as a witness for the prosecution.) Both defendants appealed but the appeal of Tindal has been abandoned.

The first exception charges that the court erred in failing to hold that 'the indictment is vague, indefinite and uncertain and [243 S.C. 269] does not substantially set forth the offense charged, thus failing to provide appellant with sufficient information to meet the charge as is required * * *.'

In the trial court, appellant contended that the indictment was vague and indefinite in failing to specify, (a) the date of the offense; (b) the 'form and manner' in which Fleming requested Holden to sign the applications for insurance policies; (c) 'in what way the defendant Billy Fleming was to have benefited' from the procurement of the insurance policies; and (d) 'in what

Page 803

manner or form the premium payments were made.'

No mention is made in the brief of specifications (a) and (b) and they are deemed abandoned. Pecuniary benefit, realized or anticipated, is not an element of the offense charged. 15 C.J.S. Conspiracy § 78 b. Therefore, the indictment was not deficient in failing to specify in what way Fleming was to have benefited.

The conspiracy paragraph of the indictment plainly charges that the premiums were paid by Tindal. Each of the sub-paragraphs charges that the premiums were collected by Holden 'from Isaac Tindal, through Billy S. Fleming * * *.' In other words, that Tindal furnished the money to Fleming, who turned it over to Holden, the insurance company's agent. No more specific allegation was necessary or appropriate in an indictment in which evidentiary matter need not be included. State v. McIntire, 221 S.C. 504, 71 S.E.2d 410.

The second exception charges error in the court's failure to quash the indictment upon the ground that 'the same was returned by a grand jury from which members of the Negro race are systematically excluded or limited in number * * *.'

The third exception charges error in the refusal of the court to quash the panel of petit jurors upon the same ground.

It appears from the record that in 1961 an indictment returned by the grand jury of Clarendon County against a [243 S.C. 270] Negro was quashed by the presiding judge upon the ground that the evidence showed a systematic exclusion of members of his race from the grand jury. The evidence at that time disclosed that no negro had served on the grand jury from 1935 to 1961 and not more than one negro on the petit jury during the same period.

The clerk of court, ex officio a member of the jury commission, was the only witness called by the appellant in support of his motions to quash. The testimony of this witness is summarized in appellant's brief, as follows:

'Clerk of Court for Clarendon County, P. T. Bradham, one of the Jury Commissioner, testified that he has been Clerk of Court for Clarendon County since 1935 and prior to 1962 no Negro had served upon the Grand Jury of that County. He testified that 'one served in 1962 and is a holdover for 1963 on the Grand Jury.' Further testimony was that several Negroes had been called to serve on the petit jury in the 'past two years' but that at no time had more than one Negro been called to serve at any one time. There are approximately 1200 qualified male electors in Clarendon County of whom about 35 are Negroes. However, approximately 60% of the County's population are Negroes.'

The witness, when asked for a numerical estimate of how many negroes had served on the petit jury in 1961 and 1962, stated that there had been 7 or 8. He further testified that of approximately 35 negro qualified male electors in the county, the names of about 25 were in the jury box, from which grand and petit jurors are drawn by lot.

We are satisfied that the record fails to establish racial discrimination in the selection and composition of the grand jury which indicted appellant or of the petit jury by which he was tried. The undisputed testimony that of approximately 1200 qualified male electors in the county only about 35 were Negroes refutes any contrary...

To continue reading

Request your trial
19 practice notes
  • State v. Sims, No. 4371.
    • United States
    • Court of Appeals of South Carolina
    • April 17, 2008
    ...not essential, but the conspiracy may be sufficiently shown by circumstantial evidence and the conduct of the parties.'" State v. Fleming, 243 S.C. 265, 274, 133 S.E.2d 800, 805 (1963) (quoting 15 C.J.C. Conspiracy § 93a); State v. Follin, 352 S.C. 235, 267, 573 S.E.2d 812, 828 (Ct.App.2002......
  • State v. Crawford, No. 3933.
    • United States
    • Court of Appeals of South Carolina
    • January 31, 2005
    ...with criminal conspiracy). This statutory pronouncement is declaratory of the common law definition of conspiracy. See State v. Fleming, 243 S.C. 265, 133 S.E.2d 800 (1963) (observing the predecessor to § 16-17-410 362 S.C. 637 was declaratory of the common law definition). The crime of con......
  • State v. Dasher, No. 21806
    • United States
    • United States State Supreme Court of South Carolina
    • November 4, 1982
    ...have clearly established the elements of criminal conspiracy. State v. Hightower, 221 S.C. 91, 95-96, 69 S.E.2d 363; State v. Fleming, 243 S.C. 265, 273-274, 133 S.E.2d 800; State v. Greuling, 257 S.C. 515, 523-524, 186 S.E.2d 706; State v. Steadman, 257 S.C. 528, 186 S.E.2d 712; State v. H......
  • State v. Kelsey, No. 24801.
    • United States
    • United States State Supreme Court of South Carolina
    • June 8, 1998
    ...not essential, but the conspiracy may be sufficiently shown by circumstantial evidence and the conduct of the parties. State v. Fleming, 243 S.C. 265, 133 S.E.2d 800 (1963). In State v. Childs, 299 S.C. 471, 385 S.E.2d 839 (1989), the defendant 502 S.E.2d 64 argued that the trial court erre......
  • Request a trial to view additional results
19 cases
  • State v. Sims, No. 4371.
    • United States
    • Court of Appeals of South Carolina
    • April 17, 2008
    ...not essential, but the conspiracy may be sufficiently shown by circumstantial evidence and the conduct of the parties.'" State v. Fleming, 243 S.C. 265, 274, 133 S.E.2d 800, 805 (1963) (quoting 15 C.J.C. Conspiracy § 93a); State v. Follin, 352 S.C. 235, 267, 573 S.E.2d 812, 828 (Ct.App.2002......
  • State v. Crawford, No. 3933.
    • United States
    • Court of Appeals of South Carolina
    • January 31, 2005
    ...with criminal conspiracy). This statutory pronouncement is declaratory of the common law definition of conspiracy. See State v. Fleming, 243 S.C. 265, 133 S.E.2d 800 (1963) (observing the predecessor to § 16-17-410 362 S.C. 637 was declaratory of the common law definition). The crime of con......
  • State v. Dasher, No. 21806
    • United States
    • United States State Supreme Court of South Carolina
    • November 4, 1982
    ...have clearly established the elements of criminal conspiracy. State v. Hightower, 221 S.C. 91, 95-96, 69 S.E.2d 363; State v. Fleming, 243 S.C. 265, 273-274, 133 S.E.2d 800; State v. Greuling, 257 S.C. 515, 523-524, 186 S.E.2d 706; State v. Steadman, 257 S.C. 528, 186 S.E.2d 712; State v. H......
  • State v. Kelsey, No. 24801.
    • United States
    • United States State Supreme Court of South Carolina
    • June 8, 1998
    ...not essential, but the conspiracy may be sufficiently shown by circumstantial evidence and the conduct of the parties. State v. Fleming, 243 S.C. 265, 133 S.E.2d 800 (1963). In State v. Childs, 299 S.C. 471, 385 S.E.2d 839 (1989), the defendant 502 S.E.2d 64 argued that the trial court erre......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT