State v. Kenny
| Citation | 57 S.E. 859,77 S.C. 236 |
| Parties | STATE v. KENNY. |
| Decision Date | 28 June 1907 |
| Court | South Carolina Supreme Court |
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.
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 16th 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 convicts, succeeded in breaking open the door of the pen and gave the alarm. Kenny was later captured at Greeleyville and carried back to Charleston for trial. When court convened, Wilson and Goodwin were still at large. Therefore, when the cause was called, the three having been indicted together, the circuit judge, on motion of the solicitor, granted a severance, and Kenny was placed on trial alone. He had employed as his counsel D. B. Summers, a negro lawyer of Charleston, who upon the day set for the hearing of the cause appeared and informed the court that on account of indisposition he would be unable to conduct the case at that time. Thereupon the court appointed Messrs. Whaley & Bissell to defend Kenny, and postponed the day of trial so as to give them time to prepare. Kenny refused to accept the services of counsel thus appointed, and on the day set for the hearing Summers appeared and conducted the case.
1. The first question raised by the exception is whether the circuit judge erred in appointing Messrs. Whaley & Bissell in the place of Summers and afterwards reinstating Summers. The right of persons indicted for capital crimes to have counsel for their defense is now generally conceded. In the United States, upon the adoption of the Constitution, it was provided, among other things, that the accused should have counsel for his defense, and most of the states, following the example thus set, have incorporated a like provision in their Constitutions. If the defendant has employed counsel, it is not incumbent on the judge to examine into his proficiency or to give other counsel. It is only in those cases where the accused is too poor to provide counsel for himself that it is the duty of the judge to appoint. In the case here under consideration the circuit judge was especially indulgent. When he learned that Summers would not appear he appointed two able lawyers to try Kenny's case. His refusal to accept their services was his misfortune, and it was not the duty of the judge to dispel the prejudice created by his former counsel. But it is alleged that the judge erred in deposing Summers. While we think he did not ( People v. Goldenson, 19 P. 161, 76 Cal. 328), yet, even if he did, no harm came to the accused on account thereof. Messrs. Whaley & Bissell were never taken into the confidence of Kenny, and in the true sense were never his attorneys. Summers, the defendant's retained counsel, appeared on the day of the trial and conducted the case. He was not placed at a disadvantage, for he had already had about two months to prepare his case, and, granting that he had been inactive during the interval between his removal and the day of the trial, still he stood in exactly the same place as he did at the time the case was first called. It is possible that he even profited by the delay.
We must therefore overrule this contention.
2. Nor do we find error or abuse of discretion on the part of the circuit judge in causing the case to be heard. It is well settled that continuances on any ground are discretionary with the trial judge, the only limitation being that he shall not abuse that discretion. State v. Murphy, 48 S.C. 1, 25 S.E. 43; State v. Atkinson, 33 S.C. 109, 11 S.E. 693; State v. Wyse, 33 S.C. 582, 12 S.E. 556. And the rule is reasonable. He is present, familiar with the surrounding circumstances, and is in a position to know whether substantial justice can be had without a continuance. It is a right of the defendant to have a speedy trial, and often justice demands it. All that is required is that no right of the accused be denied--that he receive a trial according to law. Kenny had such a trial, and he has no right to complain.
3. It is urged, however, that the jury was prejudiced against Kenny by reason of his being accompanied by an armed guard. In the modern courtroom it is a rule that as little show of arms, etc., must be made as possible. In most jurisdictions handcuffs even are not allowed to be kept on the defendant during the trial. The presence of uniformed men, the display of arms, in fact anything going to create the impression that the person in custody is an unusually dangerous criminal, has its weight with the jury, and should not be allowed. But there was no such display here. It may be that there was one, or possibly more, guardsmen in the courthouse, but had not Kenny demonstrated that it was necessary to guard him? Had he not escaped from the stockade more than once, and even then was on trial for a murder of the most heinous character? Granting, as his attorneys contend, that he had the appearance of a meek, timid little boy, yet he had indeed shown himself to be a wolf in sheep's clothing, and worthy of watching. This contention must be overruled.
4. That exception should be taken to the severance seems to us unusual. So often is the necessity, so frequently is it done and so numerous are the decided cases that it would seem no one would...
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