State v. Irvin, 20657
| Citation | 243 S.E.2d 195,270 S.C. 539 |
| Decision Date | 05 April 1978 |
| Docket Number | No. 20657,20657 |
| Court | United States State Supreme Court of South Carolina |
| Parties | The STATE, Respondent, v. Q. Z. and Willie IRVIN, Appellants (two cases). |
Michael P. O'Connell, Charleston, and David I. Bruck, Columbia, for appellants.
Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Brian P. Gibbes and Joseph R. Barker, and Sol. James C. Anders, Columbia, for respondent.
Appellants Q. Z. and Willie Irvin were convicted of housebreaking and grand larceny, and each was sentenced to seven years imprisonment. The issues on appeal are the trial judge's refusal to grant appellants' motions for a directed verdict, a mistrial and a new trial. We affirm.
On the morning of February 27, 1976, the home of Joseph L. Jacobs was broken into and a tape player, speakers, and television belonging to Mr. Jacobs were removed. No one was home at the time.
Sometime in March 1976, the tape player was found by the police in the possession of Willie Brooks who testified he purchased the tape player from appellants at $25.00. 1
At trial the State introduced no direct evidence of appellants' guilt, but relied on the permissible inference that one in possession of recently stolen goods is the thief. State v. Dewitt, 254 S.C. 527, 176 S.E.2d 143 (1970). The State introduced testimony establishing the occurrence of a housebreaking and larceny, and sought to connect appellants to this crime by showing their possession of the stolen articles. Willie Brooks testified he purchased the tape player from appellants, and Investigator Connie W. Lewis, Jr. of the Richland County Sheriff's Department testified he saw the tape player in appellants' car on one occasion when he stopped them for a driver's license check.
On advice of counsel appellants did not testify.
Appellants first contend the lower court erred by refusing their motion for a directed verdict and allege the evidence introduced by the State only raised a suspicion of their guilt.
When a motion for a directed verdict is made in a criminal case the lower court is concerned with the existence or nonexistence of evidence, not with its weight. Although the lower court should not refuse to grant the motion where the evidence merely raises a suspicion that the accused is guilty, it is the lower court's duty to submit the case to the jury if there is any evidence, either direct or circumstantial, which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced. Unless there is a total failure of competent evidence as to the charges alleged, refusal by the trial judge to direct a verdict of acquittal is not error. State v. Massey, 267 S.C. 432, 229 S.E.2d 332 (1976).
The testimony of Mr. Jacobs as to the occurrence of the housebreaking and larceny together with the testimony of Mr. Brooks and Investigator Lewis as to appellants' possession of the stolen tape player formed a sufficient basis from which appellants' guilt could be fairly and logically deduced, thus requiring the submission of the case to the jury. The lower court correctly refused appellants' motion for a directed verdict.
Appellants next contend the following statement by the solicitor during his closing argument to the jury amounted to a comment on their failure to testify and entitled them to a mistrial:
What other reasonable hypothesis is there but that they broke into that house and stole it. You have not heard one witness come up here and say, oh, those two fellows had that tape deck and here's how they got it, they bought it from some fellow off the street or they found it out in the woods. You haven't heard any testimony to that effect so what other reasonable hypothesis can you have but . . .
Defense counsel promptly objected to the solicitor's statement and moved for a mistrial. The trial judge denied the motion for a mistrial but prevented the solicitor from continuing any further in his argument. At the request of defense counsel no curative instruction was given at that time. During the charge to the jury, however, the trial judge gave the following instructions:
The fact that a defendant does not testify in his own behalf cannot and must not be considered against him under any circumstances or in any manner whatsoever. The failure of any defendant to take the witness stand and testify in his own behalf does not create any presumption against him and the jury is charged that it must not permit that fact to weigh in the slightest degree against such defendant or defendants, nor should this fact enter into the discussions or deliberations of the jury in any manner.
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State v. Cherry, 3406.
...... Martin, 340 S.C. at 602, 533 S.E.2d at 574 (citing State v. Irvin, 270 S.C. 539, 243 S.E.2d 195 (1978) ). It is equally clear, however, that on appeal from the denial of a motion for directed verdict, this court ......
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State v. Cherry
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