State v. Harvey, No. 18973

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MOSS
• Citation: 253 S.C. 328,170 S.E.2d 657
• Parties: The STATE, Respondent, v. Dewitt HARVEY and William Duck, Appellants.
• Decision Date: 03 November 1969
• Docket Number: No. 18973

Page 657

170 S.E.2d 657 253 S.C. 328 The STATE, Respondent,
v.
Dewitt HARVEY and William Duck, Appellants. No. 18973. Supreme Court of South Carolina. Nov. 3, 1969.

[253 S.C. 330]

Page 659

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.

[253 S.C. 331] MOSS, Chief Justice.

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[253 S.C. 332] 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 [253 S.C. 333] 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.

Page 660

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 [253 S.C. 334] 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....