State v. Ham

• Decision Date: 17 July 1972
• Docket Number: No. 19454,19454
• Citation: 191 S.E.2d 13,259 S.C. 118
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Gene HAM, Appellant.

Page 13

191 S.E.2d 13

259 S.C. 118

The STATE, Respondent, v. Gene HAM, Appellant.

No. 19454.

Supreme Court of South Carolina.

July 17, 1972.

Mordecai C. Johnson, Florence, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen., Emmet H. Clair, Columbia, and Sol. T. Kenneth Summerford, Florence, for respondent.

MOSS, Chief Justice:

This is an appeal by Gene Ham from his conviction for the possession of a drug known as Librium, without a medical prescription and without being prescribed or administered by medical prescription or authority, said drug being designated as having a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect, in violation of Section 32--1506(d) of the 1962 Code, as amended.

The appellant was arrested on May 15, 1970, in the City of Florence on the basis of four warrants charging him with possession and sale of stimulant drugs. Thereafter, a fifth warrant was issued charging the appellant with the possession of marijuana. Following a preliminary hearing before a magistrate for Florence County, who found probable cause, the appellant, on June 1, 1970, was indicted by the Grand Jury of Florence County. On June 2, 1970, the appellant was tried and convicted on the indictment charging him with the possession 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 certiorari.

The appellant was again arrested on June 23, 1970, and charged with assault and battery with intent to kill, and a true bill thereafter was returned by the Florence County Grand Jury. The next term of General Sessions Court for Florence County was scheduled to commence on October 5, 1970.

It appears that the present case was called for trial at the 1971 June Term of the Court of General Sessions for Florence County. At that time, the appellant made a pre-trial motion to dismiss the indictment on the ground that he had been denied his right to a speedy trial as provided for in Article I, Section 18 of the 1895 Constitution of this State and the Sixth Amendment to the Constitution of the United States. It appears that counsel for the appellant, by letter dated September 25, 1970, addressed to the solicitor of the circuit, requested to know the order in which the three remaining drug cases and the assault and battery case would be scheduled for trial. Counsel for the appellant was notified that the State would proceed to trial at the October Term of the case charging assault and battery with intent to kill. It appears that on October 8, 1970, counsel for the appellant filed a petition for removal with the United States District Court of South Carolina, pursuant to 28 U.S.C.A., Section 1443(1). This case was remanded to the State Court by an Order of the United States District Court filed on October 20, 1970. However, this remand Order was stayed by an Order of the Fourth Circuit Court of Appeals, such remaining in effect until September 13, 1971, when it was vacated. It thus appears that the State was without jurisdiction from October 8, 1970, until September 23, 1971, to try the appellant on the assault and battery charge which the State and appellant's counsel had agreed would be tried at the 1970 October Term of the Court of General Sessions for Florence County. State v. Moore, 4 Cir., 447 F.2d 1067.

At the 1970 December Term of the Court of General Sessions for Florence County, this being a term of one week, the State tried those persons who were being held in the county jail, many of whom were charged with murder. The appellant was not tried at such term because the court was without jurisdiction to try the case, which counsel had agreed would be called to trial. The appellant was not tried at the December term even though he was in jail as a result of the alleged violation of the condition of his bond on the drug charges, and being charged with assault and battery. However, he was released from jail on December 23, 1970, upon his own recognizance.

At the 1971 January Term of the Court of General Sessions, the State was still restrained from trying the appellant on the assault and battery charge because of the Order of the Fourth Circuit Court of Appeals. The State then called for trial the remaining three drug indictments. The appellant moved for a continuance of these cases on January 18, 1971, which was denied by the presiding judge. However, at the request of counsel for the appellant, the State effectively continued these cases by not calling them for trial.

Counsel for the appellant admits that on February 26, 1971, the State agreed, at his request, not to call any of the cases against the appellant for trial at the 1971 March Term of the Court of General Sessions.

We quote the following from State v. Dukes, 256 S.C. 218, 182 S.E.2d 286.

'In Wheeler v. State, 247 S.C. 393, 147 S.E.2d 627, we said:

"Whether or not a person accused of crime has been denied his constitutional right to a speedy trial is a question to be answered in the light of the circumstances of each case. A speedy trial does not mean an immediate one; it does not imply undue haste, for the state, too, is entitled to a reasonable time in which to prepare its case; it simply means a trial without unreasonable and unnecessary delay. 21 Am.Jur. (2d), Criminal Law, Section 243. As was said in Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950:

"'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice."

'The burden was on the appellants, who assert that they were denied their constitutional right to a speedy trial, to show that the delay was due to the neglect and willfulness of the State's prosecution. 21 Am.Jur. (2d), Criminal Law, Sections 251--253, at page 286, State v. Hollars, 266 N.C. 45, 145 S.E.2d 309. It has been held that 'while justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed.' Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041.'

The counsel for the appellant frankly admits that when he made a motion for a continuance of the drug cases at the 1971 January term of Court, it was based upon the pendency of the appeal to this Court by the appellant from his conviction in the marijuana case, to which reference is hereinbefore made. The appellant also admits that the request for a continuance, to which the State agreed, on February 26, 1971, was due to a petition filed by him in the Federal District Court for injunction to enjoin the prosecution in this case as well as all of the other cases. The record reveals that the appellant never made any request for immediate trial while the cases were pending against him, but only asked as to the order in which the cases would be called with the result hereinbefore stated.

The delay in the trial of the drug cases and the assault and battery case is attributable to his own actions, as is hereinbefore related. He cannot take advantage thereof and escape prosecution on the basis of a denial of a speedy trial when such delay was brought about by his own tactics and was in no way attributable to the neglect and willfulness of the State. We think that there was no error on the part of the trial judge in refusing to dismiss this prosecution on the ground that the appellant had been denied a speedy trial.

The appellant moved to quash the indictment on the ground that it failed to allege the offense substantially in the language of the statute and was fatally vague, in violation of Section 17--402 of the Code, as amended, and in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 18 of the South Carolina Constitution. This motion was refused by the trial judge and error is alleged.

Section 17--402 of the Code provides:

'Every indictment shall be deemed and judged sufficient and good in law which, in addition to allegations as to time and place, as required by law, charges the crime substantially in the language of the common law or of the statute prohibiting the crime or so plainly that the nature of the offense charged may be easily understood and, if the offense be a statutory offense, that the offense be alleged to be contrary to the statute in such case made and provided.'

In State v. McIntire, 221 S.C. 504, 71 S.E.2d 410, we held that the true test of the sufficiency of an indictment is not whether it could have been more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. See also, State v. Solomon, 245 S.C. 550, 141 S.E.2d 818. The indictment here under Section 32--1506(d) of the Code, clearly charges the crime substantially in the language of the statute, in accordance with Section 17--402 of the Code, and gives the appellant ample notice of the charge against him.

The appellant argues the indictment alleges a violation on May 14, 1970, but does not allege the place or the time of day when he committed the crime charged against him. The indictment alleges that the crime was committed in Florence County on May 14, 1970. Time is not of the essence or gist of the offense, the precise time at which the offense is charged to have been committed is not material. The indictment does specifically charge that the offense was committed on May 14, 1970, and this was sufficient.

The offense charged in the indictment is the crime set out in Section 32-- 1506(d) of the Code, as amended, with appropriate definitions set out in Section 32--1505(a)(3), as amended. The appellant argues that the exceptions contained in Section...