State v. Garlington

• Decision Date: 13 November 1911
• Citation: 72 S.E. 564,90 S.C. 138
• Parties: STATE v. GARLINGTON et al. [D1]
• Court: South Carolina Supreme Court

72 S.E. 564

90 S.C. 138

STATE v. GARLINGTON et al. ^[D1]

Supreme Court of South Carolina

November 13, 1911

Appeal from General Sessions Circuit Court of Richland County George E. Prince, Judge.

"To be officially reported."

John W Garlington and another were convicted of fraudulent breach of trust, and they appeal. Affirmed.

Dial & Todd, Christie Benet, R. E. Carwile, and B. L. Abney, for appellants. Solicitor W. Hampton Cobb and J. W. Thurmond, for the State.

JONES C.J.

The appellants, having been brought to trial upon an indictment containing five counts, were found guilty upon the fourth count only, and now appeal to this court from the judgment and sentence.

The fourth count, upon which the conviction was had, charges a breach of trust by the said defendants by the conversion to their own use of the sum of $55,596 in money, of the property of the Seminole Securities Company, intrusted to the defendants and converted to their own use with fraudulent intention. It is alleged in the first ground of appeal that there was error in the refusal of a motion made by the defendants at the trial to quash the first, second, and third counts of the indictment upon certain grounds then stated. In the view taken by this court, however, it is not necessary here to set out the grounds of this motion in detail; but it is sufficient to say that the motions involved no charge of duplicity or improper joinder of counts, but were merely demurrers to the legal sufficiency of the averments contained in the said three counts.

As the defendants were acquitted by the verdict upon each of the counts so sought to be quashed, it is somewhat difficult to perceive how they could have been prejudiced by any alleged error in refusing to quash these counts. It is true that it is charged by the appellants in this exception that, by reason of the refusal to quash these counts, certain evidence was admitted as relevant and competent which could not otherwise have been introduced, and that thereby the defendants suffered prejudice. While, however, it is so charged in general terms that irrelevant and incompetent evidence was so admitted, it has not been made to appear that either of the defendants has thereby been prejudiced.

The defendants having been found guilty upon the fourth count only, the question as to whether any crime was sufficiently charged in the other counts of the indictment becomes purely speculative, and it need not be considered in the absence of any showing of prejudicial error in the admission of evidence in support thereof. State v. Dalby, 86 S.C. 367, 68 S.E. 633.

The second and third exceptions assign error in the admission of testimony as to the value of the stock of the Carolina Agency Company at a time subsequent to the transfer of such stock by the defendant Garlington to the Seminole Securities Company; it being contended that only the value of the stock at the time of the transfer was relevant or material. Assuming that the evidence in question was immaterial and irrelevant, no showing has been made that any prejudice has resulted to either of the defendants in consequence of its admission.

Even if it be true, as claimed in argument by appellants here, that "the subsequent value could not throw any light on the issue," it does not follow that prejudicial error was committed in receiving this evidence. If a circuit judgment is to be reversed in every instance in which any evidence is admitted which does not throw light upon the issue, there would be few cases in which the granting of a new trial would not be rendered necessary by the intrusion of some particle of testimony. The contention in these exceptions being merely that the evidence in question was irrelevant, and there being no allegation nor showing of prejudice to the defendants by reason of its admission, it is not necessary to consider the question of its materiality to the issue under the count of the indictment upon which the appellants were convicted.

The fourth, fifth, sixth, and sixteenth exceptions seek to present the question as to whether there was error in refusing to entertain a motion made by the defendants at the conclusion of the evidence in behalf of the state for the direction of a verdict of acquittal. Upon this point the record shows that, at the close of the evidence in chief upon a motion by the counsel for defendants for the direction of a verdict of not guilty, the presiding judge would not then entertain the motion, announcing it to be his practice not to consider such motions until the entire evidence in the case was concluded. It further appears, however, that after said ruling has been made, the defendants ...