State v. Fleming

• Citation: 228 S.C. 129,89 S.E.2d 104
• Decision Date: 12 September 1955
• Docket Number: No. 17063,17063
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. Earl FLEMING and Doris Fleming, Appellants.

Page 104

89 S.E.2d 104

228 S.C. 129

The STATE, Respondent, v. Earl FLEMING and Doris Fleming, Appellants.

No. 17063.

Supreme Court of South Carolina.

Sept. 12, 1955.

Clement L. McEachern, Greenville, for appellants.

James R. Mann, Sol., Greenville, for respondent.

TAYLOR, Justice.

Earl Fleming, Doris Fleming, and William Massey were indicted for highway robbery and larcent at the September, 1951, Term of General Sessions Court for Greenville County. On August 30, 1951, William Massey, having waived presentment of a true bill by the grand jury, plead guilty in the Greenville County Court and was sentenced to serve 18 months. The defendants, Earl Fleming and Doris Fleming, Appellants here, were tried in the Court of General Sessions for Greenville County on September 7, 1951, and found guilty of the charge of highway robbery and sentenced to serve 10 years. Notice of intention to appeal was duly served, but for some reason, not apparent in the record, the case did not reach this Court for hearing until the May, 1955, Term. This appeal does not comply with the rules of this Court in many respects; but under the peculiar facts of this case, we will, as a matter of grace, pass upon such questions as in our view are presented.

The first question, as stated by appellants, is as follows: 'Is the confession of one convicted of a crime in itself sufficient to implicate and convict other accomplices according to the convict's testimony or does the state have to prove beyond a reasonable doubt the accomplices did commit the crime exclusive of a convict's testimony?'

A review of the record discloses that the State did not rely upon a confession for conviction. Appellants' co-defendant, Massey, who had previously plead guilty, testified for the State to the effect that the robbery was actually committed by himself and Doris Fleming while Appellant, Earl Fleming, drove the car; and he goes fully into the details recounting their meeting at the carnival, the type of car used, naming persons and places, and at what time, all of which stood up under a searching cross-examination. Massey had previously made a written confession, but it was not used by the State; and it became a part of the record at the request of appellants themselves.

There is testimony by other witnesses to the effect that Earl Fleming led the officers to the secluded spot in Pickens County where they recovered the cash box together with the inner compartment and lock which had been secreted in a water hole more than waist deep. Some considerable time thereafter, he produced the checks which were in the cash box at the time of the robbery, giving as his explanation that he had found them under some plum bushes at the carnival site and that all of this information had been given him by the State's witness, Massey, over the telephone from Washington, D. C. He admitted being in the Cadillac car at the carnival on the afternoon preceding the robbery with Massey and the others but denied taking any part in the robbery which occurred in the City of Greenville in the garage of Mr. and Mrs. Burke Jones at 230 Randall Street at approximately 8 p. m. on the 21st day of April, 1951. Both men wore masks, and Mr. and Mrs. Jones were unable to make positive identifications.

There is an abundance of evidence to corroborate the testimony offered by the State, and appellants were in nowise denied the full protection of the Contitutional guaranty of confrontation of witnesses. State v. Hester, 137 S.C. 145, 134 S.E. 885; State v. Coggins, 210 S.C. 242, 42 S.E.2d 240; however, a conviction may rest upon the testimony of an accomplice alone, if such be sufficient, without corroboration. State v. Johnson, 119 S.C. 55, 110 S.E. 460; State v. Kennedy, 85 S.C. 146, 67 S.E. 152; State v. Weldon, 89 S.C. 308, 71 S.E. 828; State v. Williams, 166 S.C. 63, 164 S.E. 415.

This question must, therefore, be resolved against the contention of appellants.

The next question listed is:

'Where the accused is not identified by the complaining witness or any other witness, except by a confession of a convict, as a matter of law should the court instruct the jury as to the identity of the accused separate and apart from the confession?'

Mrs. Jones testified that Mr. Jones had returned from the hospital the afternoon of the robbery and was in their living quarters which were partially over the garage at the time; that when she drove into the garage, two masked men presented themselves stating that it was a 'stick up', took the cash box containing the money which she had brought from the store, ran down the driveway, and succeeded in escaping after Mr. Jones, who had become aroused by the noise, fired three shots at them without effect. Both men wore masks and neither she nor Mr....