State v. Fleming
| Decision Date | 12 November 1963 |
| Docket Number | No. 18121,18121 |
| Parties | The STATE, Respondent, v. Billy S. FLEMING and Isaac Tindal, Appellants. |
| Court | South Carolina Supreme Court |
Jenkins & Perry, Columbia, Ernest A. Finney, Jr., Sumter, for appellants.
Solicitor R. Kirk McLeod, Sumter, for respondent.
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 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 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 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
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 inference which might be drawn from the relatively small number of Negro jurors, should only population figures be considered. Appellant simply failed to meet the burden of proving the ground of his motion, as is required. State v. Waitus, 224 S.C. 12, 77 S.E.2d 256.
The fourth exception has been abandoned.
The fifth exception is based upon the claimed insufficiency of the evidence to establish appellant's guilt of the offense charged and assigns as error the court's refusal to direct a verdict of acquittal on this ground. A brief statement of the facts is required.
John S. Holden was agent at Manning, South Carolina, for Ocean City Life Insurance Company, a small company with its home office at Myrtle Beach, South Carolina. Billy S. Fleming, a resident of Manning, was engaged in the undertaking business and in the business of writing fire and casualty insurance. Isaac Tindal operated a liquor store in Florence, South Carolina. Over a period of years, Tindal invested rather heavily in insurance policies on the lives of other persons, irrespective of whether he had an insurable interest in such lives.
Fleming and Tindal had known each other for many years and Holden had had business relations with both of them. Inferentially, Holden and Fleming knew of Tindal's interest in speculating on life insurance policies.
Between April 13 and August 27, 1959, Holden submitted applications to Ocean City Life Insurance Company for six policies of life insurance as follows:
Insured Beneficiary relationship Amount
-------------------- ---------------------------- ---------
Henry Brown Rachel Brown, sister $1,000.00
Melvin Brown Rachel Brown, sister 1,000.00
William Henry Melvin Phosia Briggs, sister 1,000.00
Ernest Keene Rachel Brown, sister 1,000.00
Dan Green Isaac Tindal, brother-in-law 1,000.00
Eddie Tomlin Ruth McFadden, sister 500.00
The policies applied for were duly issued. The record does not disclose to whom they were delivered. However, the initial and subsequent premiums were paid to Holden by Fleming, with funds or checks supplied by Tindal, until Holden became ill, and another agent was assigned to his debit. This agent continued the practice of collecting...
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...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 "Once a conspiracy has been......
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