State v. Francis
| Citation | 149 S.E. 348 |
| Decision Date | 25 January 1929 |
| Docket Number | (No. 12567.) |
| Parties | STATE. v. FRANCIS et al. |
| Court | South Carolina Supreme Court |
STATE.
v.
FRANCIS et al.
(No. 12567.)
Supreme Court of South Carolina.
Jan. 25, 1929.
On Rehearing, Aug. 30, 1929.
[149 S.E. 349][COPYRIGHT MATERIAL OMITTED].
[149 S.E. 350]Cothran, J., dissenting; and Watts, C. J., and Cothran, J., dissenting on rehearing.
Appeal from General Sessions Circuit Court of Beaufort County; J. Henry Johnson, Judge.
Paul Francis and others were convicted of murder, and they appeal. Affirmed.
Edgar J. Oliver, of Savannah, Ga., Geo. W. Beckett, of Beaufort, Chas. J. Colcock, of Bluffton, and Alfred Wallace, of Columbia, for appellants.
Randolph Murdaugh, Sol., of Hampton, and W. Brantley Harvey, Wm. N. Levin, and J. Heyward Jenkins, all of Beaufort, for the State.
BLEASE, J. The grand jury of Beaufort county charged Paul Francis, Frank Francis, Ethel Francis, Abraham Gadsden, Sam Simmons, and Robert Adams, all colored, with the murder of E. F. Langford, white, a rural policeman of Beaufort, on June 6, 1927. At the trial of the defendants before his honor, J. Henry Johnson, presiding judge, at the June, 1927, term of the court of general sessions of Beaufort county, the petit jury, by their verdict, convicted the defendant Sam Simmons of manslaughter; the defendants Ethel Francis and Robert Adams, of murder, with recommendation to mercy; and the defendants Paul Francis, Frank Francis, and Abraham Gadsden, of murder without any recommendation.
The defendants Paul Francis, Frank Francis, and Abraham Gadsden, who are sentenced to death by electrocution, and the defendant Ethel Francis, who was sentenced to imprisonment for life in the state penitentiary, have appealed from the judgment and sentences, respectively imposed upon them in the lower court, to this court. There is no appeal on the part of Sam Simmons and Robert Adams.
The exceptions on the part of the appellants Frank Francis, Paul Francis, and Ethel Francis are twenty-six in number, and are so numbered consecutively.
The appellant Gadsden has set up eight exceptions, numbered consecutively from 27 to and including 34. By his twenty-eighth, twenty-ninth, thirtieth, thirty-first, and thirty-third exceptions, he adopts the twelfth, thirteenth, fourteenth, and fifteenth exceptions of his coappellants. He attempts also by his thirty-second exception to adopt practically all the exceptions of the other appellants. His twenty-seventh and thirty-fourth exceptions relate mainly to the case against himself.
Many of the exceptions do not comply with the rules of this court, and quite a number of them are more in the nature of arguments than exceptions. The court, however, because of the gravity of the crime charged against the appellants, and the serious consequences resulting to them as the result of their trial below, will consider all the exceptions as if they fully complied with our rules. But for the sake of brevity, where the exceptions of Gadsden and the other appellants are the same, we shall consider such similar exceptions together. Also, in some instances where two or more of the exceptions raise the identical question in a different manner, such exceptions will be disposed of at the same time.
The appellants Paul Francis, Frank Francis, and Ethel Francis moved for a severance as to themselves from the other three defendants on trial. We do not find in the record a similar motion on the part of the appellant Gadsden. The motion was based upon these grounds: That Frank Francis would plead self-defense; that Paul Francis, father of Frank, and Ethel Francis, wife of Frank, had the right to defend their relative, and their defense would be based upon that right; that after, or during, the difficulty, without the knowledge of Paul, Frank, or Ethel Francis, the other defendants, some of whom were entire strangers to the Francis appellants, and who had no community of interest with them, injected themselves into the controversy, and, without any assistance on the part of the Francis appellants, these other persons
[149 S.E. 351]brought about the death of the deceased; that the defense of the other defendants might not be, and probably would not be, the same as that of the three Francis; that there could be no equality on the part of the defendants in exercising the right of challenge to the jury, and because of the state of public feeling against some of the defendants. The motion was refused by the presiding judge, and such refusal is assigned as error in the first exception.
It has been repeatedly held by this court that a motion for a severance and separate trial on the part of one or more defendants in a case, where several persons are jointly charged with a criminal offense, is addressed to the discretion of the trial court. See State v. Kenny, 77 S. C. 236, 57 S. E. 859; State v. Wade, 95 S. C. 387, 79 S. E. 106; State v. Brown, 108 S. C. 490, 95 S. E. 61; State v. Hanahan, 111 S. C. 58, 96 S. E. 667; State v. Jeffords, 121 S. C. 443, 114 S. E. 415.
In the Brown Case, supra, the three defendants who appealed based their motion for a severance on the ground that their defenses were antagonistic to the defenses of the other two defendants in the case. Even there, this court refused to interfere with the ruling of the trial judge when he refused the motion to sever.
Under the authorities cited, we are unable to find any abuse of the discretion vested in the circuit judge, and the first exception is overruled.
The second exception relates to the failure to grant a continuance as to the appellant Frank Francis, on the ground that the physical condition of that appellant was such at the time that he could not safely go to trial. During his trial, Frank Francis was on a cot in the courtroom; he had a broken thigh, and his limb was set in some kind of a mechanical contrivance. It was stated by his counsel "that his mental condition was necessarily such that he could not have with him the mental faculties with him that his case demands to stand the cross-examination of counsel for the State." Without any comment at the time the motion for continuance was made, the circuit judge refused the motion. When a new trial was asked because of the former ruling of the court as to a continuance, the trial judge took occasion to make some remarks as to his refusal to grant the requested continuance. He stated, in substance, that he was more embarrassed at the time the motion was made than he was after he had heard Frank Francis testify as a witness in the case; that at the time the motion was made, he was not in position to observe the condition of Frank Francis, other than to notice that he was unable to sit up; that no showing had been made from a physician as to the condition of Frank Francis at the time of the making of the motion; that the only thing before the court was the conclusion on the part of Frank's counsel; that after hearing Frank testify, he was satisfied that his physical condition did not in any way interfere with his mental faculties; and that upon cross-examination Frank handled himself as well as any of the defendants who took the stand, and better than most of them. In addition to the matters to which the circuit judge called attention, Dr. Foster, when offered as a witness for one of the defendants, in testifying as to the physical and mental condition of Frank Francis, said that, in his opinion, Frank Francis' mind was clear at the time of the trial.
In their argument, counsel for appellants cite, as authority to sustain their exception to the court's ruling, the case of State v. Low-man, 134 S. C. 485, 133 S. E. 457. We do not find in that case any holding of this court on a motion for continuance; in fact, the record shows affirmatively, "No motion was made for a continuance; counsel for each defendant announcing in open Court that they were ready for trial."
The cases sustaining the discretion of a trial judge in motions of continuance are too numerous to require citation. We take the time, however, to refer to two of these cases.
In the case of State v. Lee, 58 S. C. 335, 36 S. E. 706, two physicians certified that the nervous system of the defendant was much disturbed; that his physical condition was very bad, and they did not think he was in a fit condition to go to trial at the time. The circuit judge ordered the case to trial anyway, and stated that he was not impressed with the unsatisfactory, vague, and unsubstantial nature of the grounds for the motion, and that the defendant's own appearance and manner seemed to contradict the certificates of the physicians; and that the result showed conclusively that the defendant was strong enough to stand the ordeal of the trial. On appeal, this court refused to disturb the ruling below on the motion for continuance.
In the case of State v. Underwood, 127 S. C. 1, 120 S. E. 719, one of the grounds on which a motion for continuance was based the alleged hostile atmosphere surrounding the defendant, as evidenced by applause of the audience when the judge refused a former motion for continuance. This court held there was no error.
We see nothing in this case to change the general rule of the law, so often held by this court, that motions for continuance are addressed to the sound discretion of the trial judge, and the exception questioning the failure to grant a continuance must be overruled.
Refusal of the court to grant a change of venue is assigned as error in the third exception. The motion seems to have been made without any formal notice, or grounds thereof, having been formally served. Counsel for appellants, in open court, stated: "There is a great deal of public sentiment in this commu-
[149 S.E. 352]nity and in this county, and that sentiment is evidenced by the fact that the officers of the Court and the County officers have thought it necessary to have the Governor of the State send to this community troops for the purpose of protecting these prisoners from physical violence and the court house is now under guard."
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