State v. Hardee, 21994

Citation308 S.E.2d 521,279 S.C. 409
Decision Date19 October 1983
Docket NumberNo. 21994,21994
CourtUnited States State Supreme Court of South Carolina
PartiesThe STATE, Respondent, v. Maderia D. HARDEE, Appellant.

Walter Bilbro, Jr., Charleston, for appellant.

Atty. Gen. T. Travis Medlock, Retired Atty. Gen. Daniel R. McLeod, and Asst. Attys. Gen. Harold M. Coombs, Jr., Martha L. McElveen and Charles H. Richardson, Columbia, and Sol. Norman E. Fogle, Orangeburg, for respondent.

GREGORY, Justice:

Appellant Maderia D. Hardee was convicted of committing a lewd act upon a minor, a violation of S.C.Code Ann. § 16-15-140 (1976). He appeals, asserting numerous errors. We affirm.

First, appellant contends § 16-15-140 of the Code and the indictment violate his right to due process because the use therein of the disjunctive term "or" does not give him clear and precise notice of the nature of the accusation and denies him protection against double jeopardy.

Section 16-15-140 of the Code provides:

It shall be unlawful for any person over the age of fourteen years to wilfully and lewdly commit or attempt any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child....

The disjunctive phrases in this statute are merely descriptive of the offensive act, child molesting; thus, there is no misjoinder of offenses for which appellant might later be charged after acquittal or conviction on the present charge. See Cole v. State, 162 Ga.App. 353, 291 S.E.2d 427 (1982). Section 16-15-140 clearly gave appellant notice of the accusation against him.

Appellant next contends the terms of the statute are vague and overbroad, thus, do not give notice of the conduct required to avoid its penalty.

In construing a statute, the language used should be given its plain and ordinary meaning. The terms appellant asserts should be defined--lewd, lascivious, lust, passions, desires, arousing, appealing, gratifying, and sexual--are commonplace terms which are easily found in dictionaries and other source books. This exception is without merit.

Appellant next argues the trial judge erred in failing to disqualify a prospective juror who was a close friend of the chief investigating officer and captain of the sheriff's department which was handling the case. We disagree.

Upon questioning by the trial judge, the prospective juror stated his close friendship with the officers would not affect his ability to give appellant a fair and impartial trial. Where a juror unequivocably states he is not conscious of any bias or prejudice and he can give the defendant and the state a fair and impartial trial and render a verdict according to the law and evidence, there is no abuse of discretion in the trial court's decision to qualify the juror. State v. Johnson, 248 S.C. 153, 149 S.E.2d 348 (1966). Moreover, appellant used only four of his five peremptory challenges, thus, is in no position to complain of the court's refusal to disqualify the juror. See State v. Britt, 237 S.C. 293, 117 S.E.2d 379 (1960).

Appellant argues the trial judge erred in ruling the eight year old victim was competent to testify. Again, we disagree.

The qualification of witnesses rests within the court's discretion, whose decision will not be reversed absent abuse of discretion. State v. Lambert, 276 S.C. 398, 279 S.E.2d 364 (1981). The trial judge determined the young boy satisfied the "moral accountability" requirement set forth in State v. Green, 267 S.C. 599, 230 S.E.2d 618 (1976). We find no abuse of discretion.

Appellant argues the trial judge erred in charging § 16-15-140 in its entirety since the indictment only charged him with committing an act with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of the minor.

An indictment is sufficient if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, the defendant to know what he is called upon to answer and acquittal or conviction to be placed in bar to any subsequent prosecution. State v. Sweat, 276 S.C. 448, 279 S.E.2d 375 (1981). The indictment clearly charged appellant with a violation of § 16-15-140 of the Code. The trial judge would know what judgment to pronounce, the defendant surely would know what he is called upon to answer, and acquittal or conviction would bar any...

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16 cases
  • McGee v. Warden of Lieber Corr. Inst.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 15 de julho de 2022
    ...S.E.2d 322 (1998); State v. Wade, 306 S.C. 70, 409 S.E.2d 780 (1991); State v. Munn, 292 S.C. 497, 351 S.E.2d 461 (1987); State v. Hardee, 279 S.C. 409, 308 S.E.2d 21 (1983); State v. Tabory, 262 S.C. 136, 202 S.E.2d 852 (1974); State v. McIntire, 221 S.C. 504 71 S.E.2d 410 (1952); State v.......
  • McGee v. Warden of Lieber Corr. Inst.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 15 de julho de 2022
    ...S.E.2d 322 (1998); State v. Wade, 306 S.C. 70, 409 S.E.2d 780 (1991); State v. Munn, 292 S.C. 497, 351 S.E.2d 461 (1987); State v. Hardee, 279 S.C. 409, 308 S.E.2d 21 (1983); State v. Tabory, 262 S.C. 136, 202 S.E.2d 852 (1974); State v. McIntire, 221 S.C. 504 71 S.E.2d 410 (1952); State v.......
  • State v. Green
    • United States
    • United States State Supreme Court of South Carolina
    • 4 de dezembro de 1989
    ...must show that he exhausted all of his peremptory challenges. State v. South, 285 S.C. 529, 331 S.E.2d 775 (1985); State v. Hardee, 279 S.C. 409, 308 S.E.2d 521 (1983); State v. Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983); State v. Britt, 237 S.C. 293, 117 S.E.2d 379 (1960). If appellant fa......
  • State v. Jenkins
    • United States
    • United States State Supreme Court of South Carolina
    • 6 de abril de 2022
    ...discretion standard under option two (citing State v. Green , 301 S.C. 347, 354, 392 S.E.2d 157, 160 (1990) )); see also State v. Hardee , 279 S.C. 409, 413, 308 S.E.2d 521, 524 (1983) ("Where a juror unequivocably states he is not conscious of any bias or prejudice and he can give the defe......
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