State v. Frank

• Decision Date: 06 June 1974
• Docket Number: No. 19838,19838
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. John Edward FRANK, Appellant.

Page 827

205 S.E.2d 827

262 S.C. 526

The STATE, Respondent, v. John Edward FRANK, Appellant.

No. 19838.

Supreme Court of South Carolina.

June 6, 1974.

Jefferies & Wise, Greenwood, for appellant.

Solicitor William T. Jones, Greenwood, for respondent.

BUSSEY, Justice:

At the May, 1973 Term of the Court of General Sessions for Greenwood County the defendant-appellant was convicted of receiving stolen goods and sentenced to a term in the Youthful Offender Division of the Department of Corrections. He appeals from a denial of his motions for a directed verdict of not guilty for a new trial.

Between March 15 and March 18, 1973, at least inferentially on the night of March 16, the residence of one A. P. Nisbet in Greenwood County was entered, there being stolen therefrom, inter alia, two rifles and a pistol which were found in an automobile belonging to the defendant while parked in an alley in the city of abbeville during the night of April 3, 1973. The defendant was charged with the offenses of house breaking, grand larceny and receiving stolen goods, but convicted of only receiving stolen goods.

The pistol was found in the locked glove compartment of defendant's automobile and the two rifles were found in the trunk thereof. Shortly before the discovery of the defendant's automobile, and the stolen property therein, defendant was arrested at a point within 100 feet of his car; the arresting officer thinking that the defendant was drunk. But after he was taken to the police station the officer came to the conclusion that he was not drunk. Upon further investigation the officer discovered the car, with the defendant's pocketbook lying on the front seat thereof, and upon further search discovered the stolen property. When first questioned by officers as to how he got to Abbeville, he told them he came there in a red Volkswagen rather than in his own car, which he later admitted having driven from Greenwood to Abbeville the night of his arrest. He also told the officers, before being confronted with the evidence, that he had left his pocketbook at home in Greenwood. Confronted with the stolen guns he denied any knowledge thereof. Upon trial he offered no explanation of the stolen guns being locked in his car other than that two nights before he had been arrested for driving under the influence of liquor, following which his car was in the possession of a friend of his for a period of about four hours, intimating or suggesting that the guns had been then placed therein. The same friend accompanied defendant to Abbeville on the night of his arrest. He offered no evidence corroborative of his suggestion as to how the guns may have gotten into his car. He was unable to recall his whereabouts during the period of time in which the guns were stolen.

We think there was abundant evidence to warrant submitting the issue of the defendant's guilt to the jury and to support his conviction of receiving stolen goods. For controlling principles of law see State v. Atkins, 244 S.C. 213, 136 S.E.2d 298. It is well settled that in considering a question of sufficiency of the evidence in a criminal case, the evidence must be viewed in the light most favorable to the State.

'It is not the function of the court to pass upon the weight of the evidence, but to determine its sufficiency to support the verdict, and where there is any evidence, however slight, on which the jury may justifiably find the existence or nonexistence of the material facts in issue, or if the evidence is of such character that different conclusions as to such facts reasonably may be drawn therefrom, the issues will be submitted to the jury, see cases collected in West's South Carolina Digest, Criminal Law, k741(1).' State v. Wells, 249 S.C. 249, 253, 153 S.E.2d 904, 906.

Defendant next contends that venue was improperly laid in Greenwood County and that for such reason a verdict should have been directed in his favor. The guns were stolen in Greenwood County and were found locked in defendant's automobile over which he had dominion and control. The defendant was a resident of Greenwood County, had recently purchased the automobile in Greenwood County and had driven the automobile from Greenwood to Abbeville the night the guns were found therein. The most reasonable, if not indeed the only, inference from the evidence is that the stolen guns were received by the defendant in Greenwood County, although still in his possession and in his control after being transported by him to Abbeville County. It follows there is no merit in his contention that venue was improperly laid in Greenwood County.

The defendant next contends that the court erred in charging the crime of 'accessory after the fact' there being no evidence that the defendant was guilty as an accessory after the fact to the crime of larceny. We find no error in this respect. A review of the judge's charge shows that he did not submit to the jury the issue of defendant's guilt as an accessory after the fact. His Honor's reference to accessory was in the course of his explanation of the various circumstances under which one can be guilty of the crime of receiving stolen property and his charge was, we think, in accord with the settled law of this State. His language was quite similar to that used in State v. Tindall, 213 S.C. 484, 489, 50 S.E.2d 188, 190, as follows:

'Accordingly, the accused may be convicted of criminally receiving stolen property, even though he was a guilty participant in the stealing of it, where he took no part in the actual caption and asportation, but participated only as accessory before or after the fact. State v. Coppenburg, 2 Strob. 273, 33 S.C.L. 132; Leon v. State, 21 Ariz. 418, 189 P. 433, 9 A.L.R. 1393.'

It is next contended that the guns were the product of an unlawful search and seizure in violation of the defendant's constitutional rights, and...