State v. Ham, No. 19197

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtLITTLEJOHN; MOSS, C.J., and LEWIS; BUSSEY; BRAILSFORD
Citation256 S.C. 1,180 S.E.2d 628
PartiesThe STATE, Respondent, v. Gene HAM, Appellant.
Decision Date07 April 1971
Docket NumberNo. 19197

Page 628

180 S.E.2d 628
256 S.C. 1
The STATE, Respondent,
v.
Gene HAM, Appellant.
No. 19197.
Supreme Court of South Carolina.
April 7, 1971.

[256 S.C. 3]

Page 629

Mordecai C. Johnson, Florence, Frank E. Cain, Jr., Bennetsville, John A. Gaines, Rock Hill, and Jack Greenberg and Jonathan Shapiro, New York City, for appellant.

[256 S.C. 5] T. Kenneth Summerford, Florence, and Asst. Atty. Gen., Timothy G. Quinn, Columbia, for respondent.

[256 S.C. 8] LITTLEJOHN, Justice:

The defendant, Gene Ham, appeals from his conviction of possession of illegal drugs in violation of § 32--1506(d) (1962 Code as amended). We affirm. The facts leading to his arrest and conviction may be summarized as follows:

On May 15, 1970, the appellant was arrested in Florence on the basis of four warrants which charged him with possession of stimulant drugs. Following his arrest he was taken to the city jail and searched; the search revealed a quantity of an unidentified substance. Thereafter a fifth arrest warrant was issued charging him with possession of marijuana.

On May 28 and 29 a preliminary hearing was held and probable cause found to bind Ham over to the General Sessions Court. On June 1, 1970, the grand jury returned true bills and on June 2 the State proceeded to trial on the indictment charging possession of marijuana.

At the conclusion of the evidence the matter was submitted to the jury which returned a guilty verdict. Motions for judgment N.O.V. and a new trial were denied. Appellant was sentenced to eighteen months and this appeal follows.

Appellant raises twelve issues for determination by this court; we deal with them as they were presented in the briefs.

Appellant contends first that his initial arrest was not made pursuant to a valid arrest warrant and that the evidence seized after the arrest was therefore inadmissible. We find from an analysis of the record that no objection to the admission of the marijuana was made at trial [256 S.C. 9] on this ground. At trial appellant questioned only the competency of the State's witness to identify the seized substance as marijuana.

Appellant next contends that mere possession of marijuana cannot, consistent with due process, be made a crime. He relies primarily on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Stanley dealt solely with the possession of allegedly obscene materials in one's home, and is clearly inapplicable here.

The statute itself, as the trial judge stressed in his jury charge, requires more than 'mere' possession. The trial judge

Page 630

correctly set forth the presumption of innocence and reasonable doubt, along with the requirement of 'knowing' possession.

Appellant's third contention, that a change of venue should have been granted because of prejudicial publicity, is, after an analysis of the exhibits presented, completely without merit. The two newspaper clippings and one editorial concerning drug abuse did not name the defendant or refer in any way to his trial. The trial judge did not abuse his broad discretion in this case to determine fairness. State v. Cannon, 248 S.C. 506, 151 S.E.2d 752 (1966).

Appellant next contends that denial of his continuance motion was prejudicial error. He cites Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 76 L.Ed. 1278 (1932); that case involved the very different factual situation in which Negroes, accused of raping a white woman, were never given the effective aid of counsel. State v. Black, 243 S.C. 42, 132 S.E.2d 5 (1963) relied on by appellant, involved a capital offense where the death sentence had been imposed on the defendant. There, the only experienced counsel for the defendant had become ill and was unable to effectively participate in the trial. In the case at bar appellant was continuously and ably represented. A continuance is within the broad discretion of the trial judge. State [256 S.C. 10] v. Harvey, 253 S.C. 328, 170 S.E.2d 657 (1969), and that discretion was not abused here where seventeen days elapsed from the arrest to the beginning of trial.

Appellant next contends that the trial judge erred in refusing to ask proposed voir dire questions. § 38--202 (1962 Code) sets forth the basic voir dire questions required by law; that section also permits a defendant to introduce competent evidence in support of any objections to a juror. The basic questions referred to in the section were covered. Appellant has...

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5 practice notes
  • 35 46 Ham v. South Carolina, No. 71-5139
    • United States
    • United States Supreme Court
    • January 17, 1973
    ...inquire as to particular bias against beards, after it had made inquiries as to bias in general, was not constitutional error. Pp. 526—529. 256 S.C. 1, 180 S.E.2d 628, reversed. Jonathan Shapiro, New York City, for petitioner. Timothy G. Quinn, Columbia, S.C., for respondent, pro hac vice, ......
  • Com. v. Lumley
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 28, 1975
    ...affd. on rehearing, --- Mass. --- º, 296 N.E.2d 810 (1973), cert. den., 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973); State v. Ham, 256 S.C. 1, 180 S.E.2d 628 (1971), revd., 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). The prior case law and Supreme Court decisions gave no forewa......
  • State v. Ham, No. 19454
    • United States
    • United States State Supreme Court of South Carolina
    • July 17, 1972
    ...of marijuana. This conviction was appealed to this Court and, by our opinion of April 7, 1971, such conviction was affirmed. State v. Ham, 256 S.C. 1, 180 S.E.2d 628. This case is now before the United States Supreme Court on a writ of The appellant was again arrested on June 23, 1970, and ......
  • State v. Attardo, No. 19951
    • United States
    • United States State Supreme Court of South Carolina
    • January 28, 1975
    ...of the accused from which the inference may be drawn that the accused knew of the existence of the prohibited substances. State v. Ham, 256 S.C. 1, 180 S.E.2d 628 (1971); State ex rel. Glantz v. District Court, 154 Mont. 132, 461 P.2d 193, 198 (1969). Possession as heretofore defined by thi......
  • Request a trial to view additional results
5 cases
  • 35 46 Ham v. South Carolina, No. 71-5139
    • United States
    • United States Supreme Court
    • January 17, 1973
    ...inquire as to particular bias against beards, after it had made inquiries as to bias in general, was not constitutional error. Pp. 526—529. 256 S.C. 1, 180 S.E.2d 628, reversed. Jonathan Shapiro, New York City, for petitioner. Timothy G. Quinn, Columbia, S.C., for respondent, pro hac vice, ......
  • Com. v. Lumley
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 28, 1975
    ...affd. on rehearing, --- Mass. --- º, 296 N.E.2d 810 (1973), cert. den., 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973); State v. Ham, 256 S.C. 1, 180 S.E.2d 628 (1971), revd., 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). The prior case law and Supreme Court decisions gave no forewa......
  • State v. Ham, No. 19454
    • United States
    • United States State Supreme Court of South Carolina
    • July 17, 1972
    ...of marijuana. This conviction was appealed to this Court and, by our opinion of April 7, 1971, such conviction was affirmed. State v. Ham, 256 S.C. 1, 180 S.E.2d 628. This case is now before the United States Supreme Court on a writ of The appellant was again arrested on June 23, 1970, and ......
  • State v. Attardo, No. 19951
    • United States
    • United States State Supreme Court of South Carolina
    • January 28, 1975
    ...of the accused from which the inference may be drawn that the accused knew of the existence of the prohibited substances. State v. Ham, 256 S.C. 1, 180 S.E.2d 628 (1971); State ex rel. Glantz v. District Court, 154 Mont. 132, 461 P.2d 193, 198 (1969). Possession as heretofore defined by thi......
  • Request a trial to view additional results

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