State v. Hinson

• Citation: 172 S.E.2d 548,253 S.C. 607
• Decision Date: 19 February 1970
• Docket Number: No. 19018,19018
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. Walker G. HINSON, Appellant.

Page 548

172 S.E.2d 548

253 S.C. 607

The STATE, Respondent, v. Walker G. HINSON, Appellant.

No. 19018.

Supreme Court of South Carolina.

Feb. 19, 1970.

Cleve A. Lytle, Fort Mill, David Lyle, William C. Spencer and S. Michael Camp, Rock Hill, for appellant.

Sol. Mike S. Jolly, Union, for respondent.

BUSSEY, Justice.

The defendant-appellant, under an indictment charging him with assault and battery with intent to kill and murder one Audrey Bodiford, was convicted by a jury at the September 1968 term of the Court of General Sessions for York County of assault and battery of a high and aggravated nature and appeals from his conviction and resulting sentence. At the outset, we think it important to a discussion of several questions raised on the appeal to first note a prime distinction between assault and battery of a high and aggravated nature and assault and battery with intent to kill. Assault and battery with intent to kill is an unlawful act of violent nature to the person of another with malice aforethought, either express or implied. Malice is not an ingredient of the offense of assault and battery of a high and aggravated nature. Under any view of the evidence in the case, there were only three verdicts which the jury could have returned. Guilty as charged; guilty of assault and battery of a high and aggravated nature; and not guilty, based solely on appellant's plea of insanity. The verdict shows that the jury rejected his plea of insanity but absolved him of malice.

The appellant operated a grocery store in the vicinity of Rock Hill, South Carolina. On the afternoon of Sunday, March 31, 1968, Bodiford, an agent of the Alcoholic Beverage Control Board, and three other agents, including one Garnett E. Dabney, repaired to the appellant's grocery store and charged appellant with the sale or delivery of beer on Sunday, in violation of Section 4--204.1 of the South Carolina Code. While the agents were engaged in confiscating and removing appellant's stock of beer under the authority of said Code Section, the appellant took a revolver from near his cash register and emptied it in the direction of the agents, killing agent Dabney and wounding agent Bodiford. There in conflict in the evidence as to the conversations which took place between the agents and appellant, but a discussion of these conflicts is not essential to a determination of the appeal. Suffice it to say that there was evidence adduced on behalf of the State which would have fully supported a conviction of assault and battery was intent to kill. All evidence favorable to the defendant, other than on the issue of insanity, was simply addressed to mitigating the offense to that of assault and battery of a high and aggravated nature.

Appellant contends that there was error in denying his motion for a continuance based on alleged prejudicial newspaper publicity. It appears that the trial was commenced on September 30th, and that on the preceding September 19th there was published in the Evening Herald an article about the pending trial which contained the following language:

'According to York County Sheriff Grover Noe, the four agents, none armed, were making an inventory on the beer prior to confiscating it when the two were shot.'

What, if anything, Sheriff Noe knew about the case, or whether he, in fact, made the statement attributed to him are questions which the record does not answer.

It is too well established to need the citation of any authority that the decision of the trial judge on a motion for continuance based on pretrial publicity will not be disturbed in the absence of abuse of discretion and resulting prejudice to the defendant. We see nothing inflammatory in the statement attributed to Sheriff Noe and, moreover, the statement that the agents were unarmed is nowhere contradicted in the record. There is evidence that contrary to the publicized statement, the shooting occurred while the beer was being removed from the store, rather than in the course of the inventory thereof, but none of the statements attributed to Sheriff Noe could have possibly had any effect on the trial of the case, unless remotely bearing on the issue of the absence or presence of malice, and the jury exonerated the appellant of malice. We conclude that there was no abuse of discretion in denying the motion for a continuance and most clearly no prejudice to appellant.

In addition to the indictment upon which he was tried, there is pending an indictment against appellant for the murder of agent Dabney. Upon the call of the instant case for trial, appellant moved that the State be required to first proceed with the trial on the murder indictment, and that failing such motion, the two cases be tried together. Such motion was denied and the appellant asserts prejudicial error.

While no case precisely in point factually has been cited or come to our attention, the case most nearly in point is that of State v. Evans, 112 S.C. 43, 99 S.E. 751 (1919), from which we quote,

'The defendants were indicted for the murder of Sidney Bailey. They were also indicted for the murder of Edgar Bailey. Before they were arraigned, their attorneys made a motion to join the indictments, on the ground that they arose out of one and the same difficulty, and that the deaths of Edgar Bailey and Sidney Bailey were the result of one and the same impulse. The motion was overruled, and this presents the first assignment of error. It is only necessary to cite the following cases to show that such motions are addressed to the discretion of the presiding judge: State v. Carroll, 30 S.C. 85, 8 S.E. 433, 14 Am.St.Rep. 883; State v. Wade, 95 S.C. 387, 79 S.E. 106; State v. Brown, 108 S.C. 490, 95 S.E. 61.'

In view of the foregoing, it would seem the motion here was addressed to the discretion of the presiding judge and that his exercise of such discretion should not be disturbed in the absence of a showing of abuse of that discretion, with resulting prejudice to the appellant. While the appellant variously argues this question and contends that there was an abuse of discretion with resulting prejudice, he does not show wherein the trial judge's discretion was abused or wherein he was prejudiced. He argues, inter alia, that he was prejudiced in that of necessity some evidence relating to the murder charge came out in the trial of the instant case. It is unnecessary for us to consider or determine what the situation might have been had appellant been convicted of assault and battery with intent to kill, involving a finding of malice aforethought. The jury absolved the appellant of malice, which clearly shows, under the facts of this case, that the jury was not influenced in the slightest degree by any evidence bearing upon the murder charge.

For the same reason, the next contention of the appellant is without merit. There was evidence to the effect that shortly after the shooting and while agent Dabney was lying fatally wounded on the ground, the appellant reloaded his pistol and prevented a fellow agent from rendering assistance to Dabney. In the course of the argument of the solicitor he summarized the evidence in this respect and there was objection by appellant's counsel. Upon objection, the court admonished the solicitor in the following language: 'Not any detailed references, Solicitor.'

The record does not reflect the precise words of the solicitor and there was neither a motion for a mistrial nor a request for any specific instructions from the court. Such alone should be dispositive of this contention but, additionally, the evidence referred to by the solicitor was a part of the res gestae, and the conduct of the appellant commented upon by the solicitor was relevant on the issue of the presence or absence of malice in the heart of the appellant. The appellant having been absolved of malice, it clearly follows in this case that the argument was not prejudicial to him.

The remaining questions are all related to appellant's plea of insanity. On April 8th, following the shooting, appellant was committed to the State Hospital for a thirty day period of examination pursuant to the appropriate statute. A team of doctors there concluded that he was sane and there was no indication of any recent mental illness on his part. A psychiatrist, Dr. Fisher, from Charlotte, North Carolina, employed by the appellant, gave it as his positive opinion that appellant was insane. Lay evidence tending to prove his insanity was also offered. Appellant contends that the preponderance of the evidence established that he was insane at the time of the alleged offense and that there was no evidence whatsoever that the appellant was sane at the particular time, and that, accordingly, the court should have granted his motion to set aside the verdict of the jury.

The record does not reflect that any motion for a directed verdict was made on the ground of insufficient evidence in the course of the trial, and, under Circuit Court Rule 76, the post-trial motion was clearly not timely. It is, however, apparently well recognized that this court has the power to waive the failure to comply with Rule 76, in a criminal case, and on occasion has done so. See State v. Miller, 223 S.C. 128, 74 S.E.2d 582 (1953).

There is no doubt that compliance with the said rule should be waived if such waiver is essential to the prevention of a clear miscarriage of justice. Additionally, it may be that such should be waived in cases where there is grave doubt as to the sufficiency of the evidence to warrant the submission of a criminal case to the jury. If non-compliance with the rule be waived, the following principle of law is applicable.

'It is well settled that on appeal from a refusal to direct a verdict of not guilty, the evidence and inferences that may be reasonably drawn therefrom have to be viewed in the light most favorable to the State, and if there is any competent evidence supporting the verdict, such will...