State v. Gregory

• Decision Date: 25 September 1941
• Docket Number: 15312.
• Citation: 16 S.E.2d 532,198 S.C. 98
• Parties: STATE v. GREGORY.
• Court: South Carolina Supreme Court

16 S.E.2d 532

198 S.C. 98

STATE v. GREGORY.

No. 15312.

Supreme Court of South Carolina

September 25, 1941

Donald Russell and L. G. Southard, both of Spartanburg, for appellant.

Samuel R. Watt Sol., and Evans, Galbraith & Holcombe, all of Spartanburg, for respondent.

STUKES Justice.

The appellant, formerly secretary and treasurer of the Commissioners of Public Works of the City of Spartanburg, who are elected by the people, commonly called the Spartanburg Water Works, has been twice convicted in the Court of General Sessions of Spartanburg County of embezzlement of funds of the Water Works. His first trial was jointly with his assistant upon an indictment charging both of them with commission of the crime. On separate appeals, the appellant here was granted a new trial for the prejudicial admission of objectionable testimony and the conviction of the assistant was reversed and a verdict of not guilty directed for lack of evidence against him. See the reports of the decisions of this Court, State v. Gregory, 191 S.C. 212, 4 S.E.2d 1, and State v. Kimbrell, 191 S.C. 238, 4 S.E.2d 121. The first conviction was in November, 1938, and that from which the instant appeal comes, on a new indictment by another grand jury, in April 1940. Upon the first conviction his sentence was confinement at labor for five years and a fine of two thousand dollars and the sentence involved in this appeal was similar imprisonment for seven years and a fine of eight hundred dollars; the first conviction was of embezzlement of $2,093.41, and the present guilty verdict is upon embezzlement found by the jury of $733.53. This latter is of importance as will be seen.

Appellant's alert and able counsel have submitted one hundred and forty-eight exceptions to the acts and rulings of the trial Judge, but they have considerately grouped them in twelve questions which they have presented in argument to this Court, and these questions will be dealt with and determined in this judgment and in that way all of the numerous exceptions will be disposed of.

At the outset we repeat the time-honored tenet that ordinarily the conduct of a trial, including the admission and rejection of proffered testimony, is largely within the sound discretion of the trial Judge and his exercise of such will not be disturbed by this Court on appeal unless it can be shown that there has been an abuse of discretion, a commission of legal error in its exercise, and that the rights of the appellant have been thereby prejudiced. See the many South Carolina cases thereon gathered in West's South Eastern Digest Volume 32 and supplement, Trial, particularly k43.

Upon this established principle and in the proper application of it, we are constrained after consideration to overrule the exceptions upon which are based appellant's questions numbered 2, 3, 4, 5, 7 and 10, which allege error in the exclusion of evidence as to whether other employees in appellant's office were also under bond, as had been established by the State appellant was (but this evidence is in the record in another place, f. 1032, unobjected to); in the extent to which the appellant should have been permitted to refer to his testimony at the former trial; in the nature of the cross-examination of the appellant by the Solicitor and the exercise by appellant of his right of cross-examination; in the admission and rejection of testimony concerning the practice in appellant's office of cashing checks to furnish "petty cash"; and refusing to admit some of the testimony of appellant's accountant witnesses, who testified only as experts (they not having audited his books), as to their conclusions about the possibility of others having committed the embezzlements with which the appellant was charged.

For the same reason appellant's first question must be determined against him. In it he complains of the range which the trial Judge permitted in the testimony concerning the various alleged shortages in appellant's office. The State confined its testimony in chief to so-called "miscellaneous items", charges and receipts (of which, according to the uncontradicted evidence, there were no book entries) for material and services other than water, and it appeared that there was also a "covered up" shortage of several thousand dollars in the water account of the Spartanburg General Hospital and possibly another shortage in petty cash, to which the State's testimony, as indicated, did not refer. When it became clear to the presiding Judge that the hospital water account was unconnected (as testified to by the appellant himself) with the miscellaneous items upon which the State was seeking conviction he, we think not improperly, ruled out further evidence concerning the former. The situation seems to us to have been one peculiarly appropriate for the exercise of discretion as to admissibility of evidence and to guard against the confusion of the jury by the injection of collateral issues. The trial took five days. We find no abuse of that discretion, no error.

But appellant earnestly contends that this and other rejected testimony tended to prove another guilty of the commission of the crime with which he was charged and because the State relied upon circumstantial evidence, it was admissible. We do not think so, because of the lack of connection above pointed out. It fell far short of the applicable rule as stated in 16 C.J. 560: "At any rate the evidence offered by accused as to the commission of the crime by another person must be limited to such facts as are inconsistent with his own guilt, and to such facts as raise a reasonable inference or presumption as to his own innocence; evidence which can have (no) other effect than to cast a bare suspicion upon another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible." See also, 22 C.J.S., Criminal Law, § 622. Numerous cases from other jurisdictions are cited in the footnotes. To the same effect is the following from 20 Am.Jur., page 254: "But before such testimony can be received, there must be such proof of connection with it, such a train of facts or circumstances, as tends clearly to point out such other person as the guilty party. Remote acts, disconnected and outside the crime itself, cannot be separately proved for such a purpose. An orderly and unbiased judicial inquiry as to the guilt or innocence of a defendant on trial does not contemplate that such defendant be permitted, by way of defense, to indulge in conjectural inferences that some other person might have committed the offense for which he is on trial, or by fanciful analogy to say to the jury that someone other than he is more probably guilty."

Question six charges the trial Judge with violating the inhibition against charging upon the facts and in indicating his view of them by questioning a witness. We have carefully examined the approximately five hundred page record in this as well as other respects and find no just foundation for the criticism. In fact, the Court's charge to the jury appears to contain more than usual of instructions to the effect that the jury were the sole judges of the facts, of the defendant's guilt or innocence, and that the Court was forbidden even any intimation of his views thereabout.

The eighth and ninth questions submitted by appellant may be properly considered together. He was tried under the amendment of 1934 to Section 1510 of the Criminal Code of 1932, 38 Stat. at Large, p. 1197, the validity of which was upheld in State v. Brown, 1935, 178 S.C. 294, 182 S.E. 838. It provides that "upon production of evidence tending to prove that any...