State v. Johnson

• Decision Date: 26 March 1941
• Docket Number: 15234.
• Citation: 14 S.E.2d 24,196 S.C. 497
• Parties: STATE v. JOHNSON et al.
• Court: South Carolina Supreme Court

14 S.E.2d 24

196 S.C. 497

STATE v. JOHNSON et al.

No. 15234.

Supreme Court of South Carolina

March 26, 1941

R B. Hildebrand, of York, and W. C. McDow, of Rock Hill, for appellants.

W G. Finley, Sol., of York, for respondent.

STUKES Justice.

The three first-named defendants were indicted along with Ruth Williams in Chester County for violation of Section 1266 of the Code as amended in 1938 and appearing in the supplement for that year whereby it is made a misdemeanor to, among other things, wilfully desecrate any grave or destroy any plants, shrubbery, etc., of any graveyard; and from conviction on trial they appealed to this court upon exceptions which raise the questions argued by them and hereinafter discussed.

As indicated above, Ruth Williams was indicted with the appellants but on motion of her counsel, who were apparently the same as those for the appellants, she was committed to the State Hospital by the presiding judge for observation as to her sanity. On the ground of her absence on that account and resulting unavailability as a witness for the remaining defendants, the latter moved for a continuance of the trial, asserting that the absent defendant had in statements to others assumed all of the guilt. After hearing argument and observing that evidence of this assumption of guilt by the absent defendant would be available to the others by the testimony of other witnesses the court refused to continue the trial, to which the defendants excepted and made such the basis of their question numbered two.

Authority need not be cited for the established rule that such a motion is addressed to the sound discretion of the trial judge and this court will not disturb his ruling thereon unless it be shown that there was an abuse of discretion, which latter is not disclosed by the record here. See the many decisions thereabout in West's Digest Criminal Law, k 586.

The question numbered one imputes error in the refusal of the motion for the direction of a verdict of not guilty as to the defendant, Locke Johnson. Not only the State's testimony but his own indicated that he was employed by the owner of the automobile used to carry the defendants to the cemeteries and accompanied the other defendants in the car, the back seat of which was largely filled with pieces of shrubbery taken from about the graves and the spade used for the latter purpose. There was also evidence for the prosecution that this defendant had accompanied the others on the day before the commission of the crime in the location of one of the cemeteries involved and that he sat in the automobile when the others entered the cemeteries and removed the shrubbery to the car. These facts bring the case within the rule of State v. Gilbert, 107 S.C. 443, 93 S.E. 125. There was no error in the refusal to direct an acquittal of this defendant.

In their brief appellants abandoned their question three. Number four charges error in the permission by the trial Court of the solicitor's questions in cross-examination of the defendant, Mrs. Lester Wolfe, as to whether she had planted on her premises shrubbery from cemeteries other than those admittedly visited by her and the other defendants on the date of the crime charged in the indictment.

It appears in the agreed statement and elsewhere in the record that the defendants were also convicted upon a similar charge in York County at a later date than the Chester trial, in which latter this appeal was perfected, and that the disposition hereof by this court will similarly control the York case. On one trip from the city of Rock Hill the defendants visited cemeteries located in both counties. During the introduction of testimony for the State in the trial in Chester the question of the admissibility of evidence relating to cemeteries in York County arose and was disposed of by the trial judge by the refusal of the admission of such evidence. However, when the defendant, Mrs Wolfe, was...