State v. Hurt
Decision Date | 09 June 1948 |
Docket Number | 16089. |
Citation | 48 S.E.2d 313,212 S.C. 461 |
Parties | STATE v. HURT et al. |
Court | South Carolina Supreme Court |
Tinsley & McGowan, of Greenwood, Blackwell Sullivan & Wilson, of Laurens, and J. Perrin Anderson, of Greenwood, for appellants.
Hugh Beasley, Sol., and W. H. Nicholson, both of Greenwood for respondent.
At the June, 1946, term of the Court of General Sessions for Greenwood County, the appellants, Herbert Hurt and Tandy Wood, were tried before a jury upon an indictment charging them with burglary and grand larceny. The indictment in substance charged them with breaking and entering the dwelling house of one L. V Griffith, in the nighttime on May 22, 1945, and taking therefrom $22,400. The jury acquitted both of the appellants of the first count charging burglary, but convicted them on the second count, grand larceny. Whereupon, the trial Judge sentenced the appellants in the usual form to serve nine years and six months. It should be noted here that the indictment did not charge a conspiracy to commit either offense; neither did it charge either appellant with being an accessory before or after the fact, nor of receiving stolen property.
Upon the call of the case for trial, the appellants not being represented by the same counsel, the appellant Hurt, made a motion for a separate trial on the ground that the defense of the two appellants (defendants) 'will possibly be antagonistic; in fact, it appears very probable that a statement may be offered in evidence whereby one of the defendants would in some way implicate the other.' There was no amplification of the ground, and the trial Judge in refusing the motion, said: 'I don't think I could grant the motion on that showing. There is no showing as to what the statements are or would be, or as you just said, 'might be.' There is no showing here in addition to that statement that 'one of the defendants might make a statement that would involve him.''
The appellants have separately appealed from the refusal of the trial Judge to grant a severance, but of course the appellant, Wood, could not prosecute an appeal on this ground in that he did not move for a severance. However, a motion for a severance and separate trial is addressed to the discretion of the trial Judge, and no abuse of discretion has here been shown. State v. Jeffords, 121 S.C. 443, 114 S.E. 415; State v. Bagwell, 128 S.C. 414, 122 S.E. 513.
Appellants raise the issue that in the charge of the trial Judge to the jury, he violated Article 5, Section 26 of the Constitution in that he charged on the facts. The appellant, Hurt, takes the position that when the trial Judge instructed the jury 'that if a person has money in his home or elsewhere upon which he has not paid income tax, it is still burglary and larceny to break into his home as I explained to you and steal and carry it away.' And the appellants, Wood and Hurt, jointly complain of the instruction 'that if two or more people have participated in the commission of a crime, where more than two people have committed it or participated in it, and one or two of them are brought into court and put on trial, if those being tried are guilty of the crime charged, the fact that there is another or others who are not on trial and who might be equally guilty, that is no defense to those who are on trial.'
We can see no error in this charge as both statements complained of are correct abstract propositions of the law, and were probably prompted by the testimony in the case, and possibly the arguments of counsel engaged in the trial. Indeed, counsel for the appellant, Hurt, states in his printed brief that the theory of the State was that the crime was the joint enterprise of the wife of the prosecutor, and of the appellants. Nor do we see how the portion of the charge jointly complained of by the appellants (or any other part thereof), could have been construed by the jury as an instruction to disregard the testimony from which an inference could be drawn that an illicit relationship existed between Wood and Mrs. Griffith, the wife of the prosecuting witness, L. V. Griffith, which relationship prompted Mr. Griffith, upon learning of such, to institute this prosecution against Wood; and that this charge conveyed to the minds of the jury that the trial Judge was of the opinion that the appellants were guilty regardless of whether there were others also guilty.
The learned trial Judge did no more than was his duty in informing the jury of the applicable law under the facts of this case, and was very careful to tell them in no uncertain terms that if he had said anything during the trial, or should say anything in his charge which they might think was an intimation as to how he thought the case should be decided, to dismiss such from their minds, because it was entirely their responsibility to pass upon the innocence or guilt of the appellants.
At the close of the State's case, the appellant, Wood, made a motion for a directtion of verdict (of not guilty) as to him, which motion was denied. At the conclusion of the taking of all testimony in the case, the appellant, Wood, renewed his motion for a direction of verdict (of not guilty). A similar motion was at this time made in behalf of the appellant, Hurt. The motions were refused, and as hereinbefore stated, the appellants were convicted of grand larceny. Following their conviction, the appellants made a motion for a new trial, and this motion was likewise refused.
There is no exception by the appellant, Hurt, to the denial of his motion for a direction of verdict of 'Not Guilty,' made at the conclusion of the taking of all testimony, but his exception is limited to the refusal of his motion for a new trial. The appellant, Wood, has excepted to the ruling of the trial Judge in refusing his motion for a direction of verdict of 'Not Guilty,' and from the refusal of his motion for a new trial.
The approach to a discussion of the testimony tending to show the guilt of the appellants is made more difficult by reason of the fact that it is necessary to consider separately, to a large extent, the testimony, if any, tending to connect either or both of the appellants with this larceny. That some one or more persons stole $22,400 from a small wall safe from the rural home of L. V. Griffith in Greenwood County, about one and one-half miles from Ware Shoals, breaking open a small safe in order to get said sum of money, and which was the property of L. V. Griffith, is not specifically denied by either of the appellants. However, the appellant, Hurt, in his printed argument calls attention to certain facts which he says cast a grave suspicion on the claim of Griffith that any theft of money from his home had been committed.
The testimony in behalf of the prosecution (State) fixes the time when the larceny was committed as between 8 o'clock and 10 o'clock on the evening of May 22, 1945, when none of the occupants of the dwelling in which the safe was situate were present. The regular occupants of the Griffith home were Mr. and Mrs. L. V. Griffith, a then married daughter, Mrs. Ruth South, a single daughter, Kate, who shortly thereafter married a young man by the name of Finley, and another small daughter--a child approximately three years old For the purpose of this appeal it is conceded that an illicit relationship existed between the appellant, Wood, and Mrs. Griffith, the wife of L. V. Griffith, the prosecuting witness in this case.
The testimony adduced upon the trial was voluminous, and in presenting the State's case sequence was disregarded; and on this appeal we have not been furnished with a printed argument by the Solicitor or by counsel assisting the Solicitor in the prosecution.
As best we can gather from the record, on May 22, 1945, Wood and his wife and two children lived in Ware Shoals, but his gas station business was conducted about four miles from Ware Shoals and in the same general direction therefrom, if not on the same highway, that passed the home of Griffith; and in any event, it was more than two miles from the gas station of Wood to the residence of Griffith. Wood and his wife were on the friendliest of terms with the Griffith family, in fact, Wood and Mrs. Griffith were too friendly. The families frequently visited each other and especially was Wood at the home of Griffith very often, which situation had existed for a long while.
On the day of the theft, Wood was at the Griffith home from about 9 o'clock that morning until 3 o'clock in the afternoon, and ate dinner there. During this time, the entire Griffith family was at home, Mr. Griffith, however, being asleep, and in addition, two painters were there. During the morning, Hurt, accompanied by a woman of undisclosed identity, came to the Griffith home and asked to see Mr. Griffith. Mrs. Griffith would not disturb her husband who, as aforesaid, was asleep. The woman who had accompanied Hurt was invited into the house, but declined, whereupon Mrs. Griffith got in the car with her, and talked for about thirty minutes, during which time, Hurt and Wood sat in Wood's car and talked. Hurt and his woman companion left, and the woman was not seen any more. Hurt denied having gone to the Griffith home until late in the afternoon of this day, and then only at the urgent request of Mrs. Griffith, and alone.
During the afternoon at about 6 o'clock, Mr. Griffith left home to go to Greenwood, and a short while thereafter, Mrs Griffith and her daughter, Mrs. South, left there to go tell another daughter (presumably Kate) to come on home to supper. As they were returning from where they had gone to tell this other daughter to come home, and were passing the filling station run by Wood, they were flagged by Hurt. When ...
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