State v. Kenny

Citation77 S.C. 236,57 S.E. 859
PartiesSTATE v. KENNY.
Decision Date28 June 1907
CourtUnited States State Supreme Court of South Carolina

57 S.E. 859
77 S.C. 236

STATE
v.
KENNY.

Supreme Court of South Carolina.

June 28, 1907.


1. Criminal Law—Appeal — Harmless Error—Trial—Illness of Counsel.

Where counsel for defendant, charged with murder, insists that he cannot go to trial because of illness, and the court appoints counsel on the date set for trial and continues the case to a later date, and defendant refuses to accept the appointed counsel, and on the adjourned day the original counsel appears and goes on with the trial, there is no reversible error.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3085.]

2. Same—Continuance.

A motion for continuance of a criminal case is in the discretion of the trial judge.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1311.]

3. Same—Conduct of Trial.

Where one indicted for murder attempted once or twice to escape, the placing of one or two constables about the prisoner in the court-

[57 S.E. 860]

room does not tend to unduly prejudice the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1484.]

4. Same—Severance.

Severance in a criminal case is in the discretion of the trial judge.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1380.]

5. Same—Declarations of Codefendant.

Where three persons are charged with murder and a severance is ordered, declarations of one charged in the indictment, but not then on trial at the time of the commission of the act, are admissible.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 984.]

6. Same—Evidence.

On trial for murder, it is not error to ask defendant if he had, since the homicide, the watch of deceased in his possession and to contradict him upon denial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 824.]

7. Same—Instructions.

Where a severance has been granted on an indictment against three persons for homicide, and one alone is put on trial, the court may properly instruct that the persons named in the indictment are charged with the offense and as to aiding and abetting in committing the crime.

Appeal from General Sessions Circuit Court of Charleston County.

George Kenny was convicted of murder, and appeals. Affirmed.

W. Turner Logan and Jno. P. Grace, for appellant.

W. St. Julien Jervey, for respondent.

POPE, C. J. The defendant, George Kenny, was convicted at the November, 1906, term of the court of general sessions for Charleston county, of the murder of Herman G. Stello, a guardsman at the stockade where the convicts of the Charleston county chain gang were confined. The facts as proved by the state were as follows: On the 10th of August, 1906, Harmon Wilson, George Kenny, and Alonzo Goodwin, in pursuance of a previously made plan, pretended that they were sick and unable to work; consequently, they, with two other convicts. Clark and Duncan, were allowed to remain in the stockade, the balance of the gang going about two miles away to work on the state road. Some time after the departure of the gang Wilson got the water bucket from the shelf, and, going to the window, asked Stello, the guard, to hand them a bucket of water. In pursuance of this request Stello was opening the door of the pen of the stockade when Wilson forced it back, struck him in the head with the bucket, and seized him by the throat. Immediately Kenny sprang upon him and with a razor or some other sharp instrument slashed his throat and neck so that he bled to death. They then thrust Stello into the pen, drove in the other two convicts who refused to attempt to escape and two cooks who had been sleeping in the kitchen, locked the door, and, after changing clothes, made their escape. A short time afterwards Clark and Duncan, the two...

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