State v. Kennedy, No. 20842

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtPER CURIAM
Decision Date28 December 1978
PartiesThe STATE, Respondent, v. Oren KENNEDY, Appellant.
Docket NumberNo. 20842

Page 338

250 S.E.2d 338
272 S.C. 231
The STATE, Respondent,
v.
Oren KENNEDY, Appellant.
No. 20842.
Supreme Court of South Carolina.
Dec. 28, 1978.

[272 S.C. 232] Thomas A. McKinney and Hugh L. Harrelson, Rock Hill, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Brian P. Gibbes and Robert N. Wells, Jr., Columbia, and Sol. William L. Ferguson, Rock Hill, for respondent.

PER CURIAM:

The appellant, Oren Kennedy, was tried under an indictment for armed robbery, burglary, and murder at the January 1978 Term of General Sessions for York County. He was found guilty as charged and was sentenced to two life terms plus twenty-five years, from which convictions and sentences he appeals. We reverse and remand for a new trial.

The testimony reflects that the appellant and others broke into the dwelling house of one Johnny White, through the locked front door, while a card game was in

Page 339

progress; that the intruders took from the persons in the room at gunpoint approximately $500.00; and, that during the course of the robbery Johnny White was killed by a shotgun blast to the head. Victims of the robbery identified at trial the appellant as being one of the robbers, and he was further identified as the robbery who was armed with the shotgun.

The appellant offered alibi as a defense and contends on appeal that there was insufficient evidence to support his convictions and that he was entitled to a directed verdict. It is sufficient to state that we have reviewed the testimony and it is more than adequate to require the submission of [272 S.C. 233] this case to the jury. Since there will be a new trial, for reasons hereinafter discussed, we refrain from commenting on the evidence in any detail.

We next address the issue raised by Question 5 of appellant's brief, which asserts an alleged improper and prejudicial comment by the trial judge. This exception is patently meritorious and mandates a new trial for the appellant.

The defense subpoenaed as witnesses three prisoners who had previously been convicted of the crimes for which the defendant was being tried and were serving terms in the Central Correctional Institution. After completion of their testimony, defense counsel suggested to the trial judge that these witnesses be removed from the courtroom. This suggestion was made by defense counsel after the defendant had been placed on the stand to testify but before questioning had commenced. The jury was present in the...

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14 practice notes
  • State v. Simmons, Appellate Case No. 2016-001975
    • United States
    • United States State Supreme Court of South Carolina
    • March 25, 2020
    ...S.C. Const. art. V, § 21 ("Judges shall not charge juries in respect to matters of fact, but shall declare the law."); State v. Kennedy, 272 S.C. 231, 234, 250 S.E.2d 338, 339 (1978) ("[T]he trial judge must refrain from all comment which tends to indicate his opinion as to the weight or su......
  • State v. Woomer, No. 21592
    • United States
    • United States State Supreme Court of South Carolina
    • November 10, 1981
    ...in light of these circumstances, that it would be naive to assume the court's instruction could remedy such unfairness. State v. Kennedy, 272 S.C. 231, 250 S.E.2d 338 Next, appellant argues the trial court erred in submitting three aggravating circumstances to the sentencing jury where the ......
  • Sosebee v. Leeke, No. 22796
    • United States
    • United States State Supreme Court of South Carolina
    • November 9, 1987
    ...(1938). Even an immediate curative instruction can be insufficient to prevent prejudice from a judge's improper comment. State v. Kennedy, 272 S.C. 231, 250 S.E.2d 338 (1978); see also State v. Smith, 290 S.C. 393, 350 S.E.2d 923 (1986) (instruction to disregard incompetent evidence usually......
  • State v. Spann, No. 21992
    • United States
    • United States State Supreme Court of South Carolina
    • October 13, 1983
    ...supra. We have reviewed the testimony and it is more than adequate to require the submission of this case to the jury. State v. Kennedy, 272 S.C. 231, 250 S.E.2d 338 (1978). Opening a window constitutes a breaking. State v. Clamp, 225 S.C. 89, 99, 80 S.E.2d 918, 922 (1954). The smudged palm......
  • Request a trial to view additional results
14 cases
  • State v. Simmons, Appellate Case No. 2016-001975
    • United States
    • United States State Supreme Court of South Carolina
    • March 25, 2020
    ...art. V, § 21 ("Judges shall not charge juries in respect to matters of fact, but shall declare the law."); State v. Kennedy, 272 S.C. 231, 234, 250 S.E.2d 338, 339 (1978) ("[T]he trial judge must refrain from all comment which tends to indicate his opinion as to the weight or......
  • State v. Woomer, No. 21592
    • United States
    • United States State Supreme Court of South Carolina
    • November 10, 1981
    ...in light of these circumstances, that it would be naive to assume the court's instruction could remedy such unfairness. State v. Kennedy, 272 S.C. 231, 250 S.E.2d 338 Next, appellant argues the trial court erred in submitting three aggravating circumstances to the sentencing jury where the ......
  • Sosebee v. Leeke, No. 22796
    • United States
    • United States State Supreme Court of South Carolina
    • November 9, 1987
    ...(1938). Even an immediate curative instruction can be insufficient to prevent prejudice from a judge's improper comment. State v. Kennedy, 272 S.C. 231, 250 S.E.2d 338 (1978); see also State v. Smith, 290 S.C. 393, 350 S.E.2d 923 (1986) (instruction to disregard incompetent evidence usually......
  • State v. Spann, No. 21992
    • United States
    • United States State Supreme Court of South Carolina
    • October 13, 1983
    ...supra. We have reviewed the testimony and it is more than adequate to require the submission of this case to the jury. State v. Kennedy, 272 S.C. 231, 250 S.E.2d 338 (1978). Opening a window constitutes a breaking. State v. Clamp, 225 S.C. 89, 99, 80 S.E.2d 918, 922 (1954). The smudged palm......
  • Request a trial to view additional results

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