State v. Galloway
| Decision Date | 12 February 1975 |
| Docket Number | No. 19961,19961 |
| Citation | 211 S.E.2d 885,263 S.C. 585 |
| Parties | The STATE, Respondent, v. Donald Woodrow GALLOWAY et al., Appellants. |
| Court | South Carolina Supreme Court |
W. Richard James, Hack H. Lynn and H. F. Partee, Greenville, for appellants.
Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Robert M. Ariail, and Staff Attys. Wade S. Kolb, Jr., and Sidney S. Riggs, III, Columbia, and Sol. Thomas W. Greene, Greenville, for respondent.
The charges against the three appellants arose from an affray which took place at Brissey's Garage in the City of Greenville, on May 9, 1973. According to the State's witnesses, the owner of the garage, who was also the popular coroner of Greenville County, was viciously attacked by the three young men when he refused to surrender to one of them an impounded automobile without a release from the City Police Department. Within a few minutes after the arrival of police officers at the scene, Mr. Brissey suffered a fatal heart attack.
The three men were indicted for assault and battery with intent to kill. Galloway was found guilty as charged. Robinson and Dennis were convicted of assault and battery of a high and aggravated nature. All three defendants have joined in an appeal to this Court. We consider seriatim the three questions argued in the brief.
The defendants contend that they were deprived of a fair trial by prejudicial pretrial publicity coupled with the victim's popularity in Greenville County.
It is axiomatic that a motion for change of venue on these grounds rests in the sound discretion of the trial judge and that his denial thereof will not be disturbed on appeal in the absence of a clear showing of abuse of discretion and accompanying prejudice to the defendants. We find no such showing on this record.
A hearing on this motion was had before the judge at which witnesses were examined and exhibits introduced. It appears therefrom that the incident at the garage and the death of the popular coroner were publicized extensively by all local news media for several days. In these early publications and broadcasts the facts were stated according to the versions of garage attendants and police officers. These were unfavorable to the defendants and inconsistent with their testimony at the trial. However, with minor exceptions which need not be recounted, these publications of the alleged details of the affray took place some five months before the trial, and the witnesses called in support of the motion testified that they had heard no discussion of the case since soon after Mr. Brissey's death. In short, there was no substantial evidence that whatever prejudice against the defendants had been engendered by the publicity given to the case in May was yet active in October when the motion was refused.
In addition, a searching Voir dire examination of the jurors, which was conducted by the trial judge, failed to elicit answers suggesting the existence of prejudice against the defendants. We find nothing in the record on which it could soundly be held that the trial judge abused his discretion in refusing this motion. See State v. Crowe, 258 S.C. 258, 188 S.E.2d 379 (1972), and State v. Bennett, 256 S.C. 234, 182 S.E.2d 291 (1971).
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Under the State's version of the facts, the defendants made an unprovokedattack on the proprietor within the garage building, where most of the difficulty took place. Under the defendant's testimony, Mr. Brissey attacked them in the public street, and their resort to force was in the exercise of their right of self-defense. The record leaves unresolved whether an unpaved area between the garage and street, where part of the difficulty may have taken place, was part of the premises or was a public sidewalk.
There was no error in refusing the requested instruction which assumed the existence of facts either unsupported by testimony or disputed, thus amounting to an impermissible charge on the facts. Constitution of South Carolina, Art. V, Sec. 17; Durant v. Stuckey, 221 S.C. 342, 70 S.E.2d 473 (1952); Jones v. Charleston & W.C. Ry. Co., 61 S.C. 556, 39 S.E. 758 (1901).
Furthermore, assuming the defendants' infliction of violent injuries on the garageman, which is implicit in the verdict, the burden was upon them to establish self-defense. The adequacy of the judge's instructions on the four elements of this defense is unchallenged. A further instruction that a proprietor's right to eject an intruder from his premises does not extend to an adjacent public way, would have added nothing to the jury's understanding of the law applicable to the defense and was not required.
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The question relates to the defendants' witness Church. She testified that from her place of employment, across a stream bordered by trees and about 300 yards away, her attention was attracted to Brissey's garage on the occasion in question. She looked out of a window and saw in the street in front of the garage a tall grayhaired man, with a stick in his hand, facing a tall shirtless long-haired young man. She saw the older man strike the younger with the stick, which she identified as a piece of 2 x 4, and saw the young man respond by striking his assailant twice in the face with his fists. She did not recognize either man, but realized shortly thereafter, on hearing a news broadcast about Brissey's death, that the older man had been he; and, upon hearing a later broadcast about the arrest of the defendants, realized that the young man was her sister's son, the defendant Galloway.
On cross-examination, the solicitor elicited from Mrs. Church that before recognizing either of the antagonists, she had thought that the blow struck by the older man 'was a pretty bad thing to do.' He then asked her whether, upon learning of Brissey's death and before knowing of the involvement of her nephew, she had not exclaimed to three named co-workers, Upon objection to this line of questioning, the jury was excused. After a long colloquy between counsel and the court, the judge allowed the question and ruled that Mrs. Church's coworkers could be called to contradict her denial of having made the statement. Thereupon, the three co-workers to whom Mrs. Church's attention had been directed, testified that she did make the ...
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...126 S.E. at 28-29. However, recognizing this test for collateralness is not always sufficient, the Supreme Court in State v. Galloway, 263 S.C. 585, 211 S.E.2d 885 (1975), opined the question is often one of relevance. The Court enunciated: "`The general rule is, that the answer of a witnes......
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...that it is within the sound discretion of the court as to whether a motion for a change of venue should be granted. State v. Galloway, 263 S.C. 585, 211 S.E.2d 885 (1975); State v. Pruitt, 260 S.C. 396, 196 S.E.2d 107 (1973); State v. Swilling, 249 S.C. 541, 155 S.E.2d 607 (1967). There is ......
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