State v. Harvey
| Decision Date | 03 November 1969 |
| Docket Number | No. 18973,18973 |
| Citation | 253 S.C. 328,170 S.E.2d 657 |
| Parties | The STATE, Respondent, v. Dewitt HARVEY and William Duck, Appellants. |
| Court | South Carolina Supreme Court |
David C. Bryan, Jr., Stanley B. Crosby, Jr., Bryan, Crosby, Bates & Able, West Columbia, William F. Able, Columbia, for appellants.
Solicitor Phillip K. Wingard, Lexington, for respondent.
The record shows that Dewitt Harvey and William Duck, the appellants herein, along with Jimmy Lee Leach and George Burbage, were indicted and charged with the crime of armed robbery. Sec. 16--333 of the Code. Upon arraignment all four of the defendants entered a plea of 'not guilty'. When the case was called for trial Leach and Burbage entered a plea of 'guilty' as charged. Harvey and Duck, represented by appointed counsel, were tried before The Honorable George Bell Timmerman, Jr., presiding judge, and a jury, on May 31, 1967. The jury returned a verdict of guilty and the appellants were sentenced to imprisonment for a term of fifteen years. From the rulings of the trial judge and the sentence imposed this appeal has been prosecuted.
The appellants assert that the trial judge committed error in refusing to grant their motions for a continuance. The basis of the appellants' motions for a continuance was upon the ground that the attorneys did not have sufficient time to investigate the case, search for witnesses, confer with the appellants, question co-defendants, study additional jurors that had been drawn, and research the statute and case law on armed robbery. The granting of a continuance is a matter entirely within the discretion of the trial judge and not reviewable unless there is a clear abuse of discretion. State v. Young, 243 S.C. 187, 133 S.E.2d 210. It appears from the record that the attorneys for the appellants were appointed four days prior to trial. In State v. Livingston, 223 S.C. 1, 73 S.E.2d 850, the denial of a like motion was upheld where counsel for the defendant had been appointed by the court three or four days prior to the date of the trial. In State v. Britt, 237 S.C. 293, 117 S.E.2d 379, one of the grounds of the motion for continuance was that an additional venire of jurors had been drawn and the appellants had not had adequate time to properly study this list of jurors. We affirmed the refusal of the trial judge to grant a continuance on the stated ground. We conclude that there was no error on the part of the trial judge in refusing the motions of the appellants for a continuance.
The appellants charge that the trial judge committed prejudicial error in refusing their motions for a separate trial on the ground that the testimony to be offered by the prosecution would be admissible and relevant to one defendant and inadmissible and irrelevant as to the other. The motions were on the further ground that one of the appellants wished to testify and put his character at issue and the other felt that he should remain silent; the contention being that the one testifying would prejudice the jury as to the other if they were tried together.
This court has repeatedly held that a motion for a severance and separate trial on the part of one or more defendants in a case, where several persons are jointly charged with a criminal offense, is addressed to the discretion of the trial judge, and only an abuse of that discretion constitutes reversible error. State v. Britt, 235 S.C. 395, 111 S.E.2d 669. If the State offered testimony admissible and relevant as to one defendant but inadmissible and irrelevant as to the other, the trial judge upon proper objection should admit the testimony only against the defendant to whom it was applicable. We find no abuse of discretion on the part of the trial judge in refusing to grant the motion made for severance and a separate trial.
The appellant Harvey asserts error on the part of the trial judge in refusing to quash the indictment against him on the ground that he was illegally removed from Charleston County to another county without proper writ, in violation of Section 17--262 of the Code. This question was not raised in the court below and is not properly before us for decision. However, a motion upon the ground stated was made in behalf of the appellant Duck but there is no exception challenging the ruling of the trial judge in refusing such motion. The exception of the appellant Harvey posing this question is overruled.
After a jury had been impaneled, the solicitor published the indictment to the jury charging all four defendants with armed robbery. Following the publication of such indictment, the solicitor stated to the jury that Burbage and Leach had plead guilty to such indictment. Thereupon, the appellants made a motion for a mistrial on the ground that the statement by the solicitor that Leach and Burbage had entered pleas of guilty to the charge contained in the indictment was prejudicial to the appellants. A motion for a mistrial was refused and error was assigned. A review of the record shows that Leach and Burbage testified in behalf of the State and during the course of their examination by the solicitor each testified, without objection, that he had entered a plea of guilty to the charge contained in the indictment. Since this testimony was admitted without objection by the appellants they are not in position to now assert error. After the motion for a mistrial was made and refused, counsel for the appellants cross-examined Leach and Burbage with reference to their pleas of guilty without reserving the objection previously made. The objection was thereby lost and if any error had been committed in the refusal of a motion for a mistrial, it was cured. State v. Motley, 251 S.C. 568, 164 S.E.2d 569; State v. Smith, 245 S.C. 59, 138 S.E.2d 705.
The next question is whether the trial judge erred in failing to declare Walter Powell, an officer of the South Carolina Law Enforcement Division and the chief investigator in this case, a hostile witness and to allow the appellants to introduce evidence to impeach the testimony of such officer.
The record shows that the appellants called Walter Powell as a witness in their behalf and before he had been examined by counsel for the appellants, a request of the court was made that this witness be declared hostile. This, the court refused to do.
It appears that while the witness Powell was under direct examination by counsel for the appellant Harvey, he was asked about a conversation that he had with members of Harvey's family when they came to visit him at the Lexington County Jail. What took place is as follows:
Thereafter, counsel for the appellant Harvey tendered three witnesses to contradict the answer given by the witness Powell. The trial judge refused to declare Powell a hostile witness and to permit the appellant Harvey to contradict him on a collateral matter.
Contradictory statements may not be used to impeach a party's own witness except upon a showing of surprise. In the motion made by the appellant to have the witness declared hostile, no claim of surprise was made as a ground of such motion. We have held that for a party to be able to impeach his own witness on the ground of surprise it is essential that it appear that the party has been actually surprised by the testimony of such witness, or that he has been deceived or entrapped into introducing the witness because of such contradictory statements. State v. Nelson, 192 S.C. 422, 7 S.E.2d 72. We think the trial judge was correct in refusing the motion of the appellant because there is no showing of surprise.
The appellants contend that the trial judge erred in admitting the testimony of Leach and Burbage, who were indicted along with the appellants, without requiring the State to show that such testimony had been induced and obtained by constitutional means and due process of law. The appellants argue that the State should have been required to show that the constitutional rights of Leach and Burbage had been properly explained to them and that they had made an affirmative waiver of such. The appellants cite no authority for this position. Our independent research reveals none. The general rule is that a person who has been convicted under or has entered a plea of guilty to a...
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...addressed to the discretion of the trial judge, and only an abuse of that discretion would constitute reversible error. State v. Harvey, 253 S.C. 328, 170 S.E.2d 657. Since the appellants were jointly charged with the murder of the deceased, they were not entitled to be tried separately as ......
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