State v. Key, No. 19212

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtLITTLEJOHN; MOSS, C.J., and LEWIS; BRAILSFORD; BUSSEY
Citation180 S.E.2d 888,256 S.C. 90
PartiesThe STATE, Respondent, v. Atlas KEY and Robert Tobias Thomas, Appellants.
Decision Date29 April 1971
Docket NumberNo. 19212

Page 888

180 S.E.2d 888
256 S.C. 90
The STATE, Respondent,
v.
Atlas KEY and Robert Tobias Thomas, Appellants.
No. 19212.
Supreme Court of South Carolina.
April 29, 1971.

[256 S.C. 91]

Page 889

David Lyle and Richard C. Lewis, Rock Hill, and Cleve A. Lytle, Fort Mill, for appellants.

Solicitor Mike S. Jolly, Union, for respondent.

LITTLEJOHN, Justice:

Atlas Key and Robert Tobias Thomas were convicted of armed robbery at the July 1969 term of the Court of General Sessions for York County. A motion for a new trial was overruled. They have appealed to this court alleging error on the part of the trial judge in denying the motion.

By appropriate exceptions the two appellants allege error on the part of the judge in admitting certain testimony of [256 S.C. 92] Alvin Dean Bennett concerning defendant Key's mother, in directing witness Bennett to repeat an answer 'slowly, clearly and distinctly', and in failing to exclude a portion of the solicitor's argument to the jury.

On April 9, 1967, in the nighttime, two men robbed the Handy Pantry Store of $313. Both were wearing stockings over the face and each had a pistol. In the store at the time were assistant manager Darrell Leon Walters, Alvin Dean Bennett and Mrs. Kay Kiker, all of whom testified for the State at the trial. The masked gunmen departed the store; there can be no question but that an armed robbery took place. The principal issue in the trial of the case was the matter of identity.

While Bennett was testifying on direct examination the solicitor asked about a conversation which he had with the mother of the defendant Key. Over objection of counsel he was permitted to testify that Key's mother told him that 'Atlas said he was going to take half of Rock Hill with him if he was sent off and it would be best for me to just leave town on Sunday.' The record reflects that the judge told the witness to repeat the answer 'slowly, and clearly and distinctly.' Bennett also testified that he had received some other telephone calls.

Both appellants argue prejudicial error by reason of the fact that the judge asked the witness to answer slowly, clearly and distinctly. At most the objections could relate only to the case against Key.

The next alleged error concerns jury argument. When he case was argued before the jury the exact words of the solicitor were not recorded, but the following is a part of the record:

'The Reporter: Argument of counsel was not taken down by me, however, Mr. Lytle objected during the Solicitor's argument to the jury concerning a statement made by the Solicitor to the effect that he wouldn't give a plug nickel for [256 S.C. 93] Bennett's life if the defendants were turned loose. The objection was overruled by the Court.'

We agree that the court erred in permitting Bennett to testify about his conversation with Key's mother, and in permitting the solicitor's argument to the jury. We are not convinced that the judge's direction to the witness to testify slowly, clearly and distinctly was error; but for all the record shows, his instructions may have been given because the witness was testifying rapidly and indistinctly.

We affirm because we are not convinced that the errors prejudiced the defendants. It is well settled in this State that 'where guilt is conclusively proven by competent evidence and no rational conclusion can be reached other than the defendants are guilty, judgment of conviction should not be set aside because of insubstantial errors not affecting the result. State v. Robinson, 238 S.C. 140, 119 S.E.2d 671.' State v. Harvey, 253 S.C. 328, 170 S.E.2d 657 (1969).

'Whether the error in a given case shall be regarded as harmless on appeal may often depend on the circumstances of the particular case rather than on any definite rules of law, the materiality and prejudicial character of the alleged error being determined in its relation to the entire case. Accordingly, the appellate courts

Page 890

are disposed to regard as harmless intervening errors where it appears from the record that the conviction is clearly correct on the merits; where it appears on the whole case that substantial justice has been done; where the record shows that accused had a fair trial; where the record conclusively shows that the alleged error could not have resulted in prejudice; where from the whole record the guilt of accused appears to be clearly established; where no other verdict could have been returned on the evidence, and where the conviction was just and would have been reached if the errors had not been committed. So, also, where it can be said from the record that the errors complained of could not reasonably have affected the result of the trial, they may be regarded[256 S.C. 94] as harmless, and this particularly where proof of accused's guilt is clear.' 24A C.J.S. Criminal Law § 1887 (1962).

The admissibility of evidence as well as the argument of counsel to the jury are largely within the discretion of the trial judge. While it would appear that the objection to the evidence and the objection to the argument should have been sustained, we must, as we consider the prejudice issue, bear in mind that this court did not hear what took place while the trial judge did. The trial judge sees what is done and hears what is said. He is cognizant of all the surrounding circumstances and is a better judge of the latitude that...

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50 practice notes
  • State v. Martucci, No. 4438.
    • United States
    • Court of Appeals of South Carolina
    • September 24, 2008
    ...have affected the result of the trial.'" State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) (quoting State v. Key, 256 S.C. 90, 93, 180 S.E.2d 888, 890 (1971)); accord State v. Sherard, 303 S.C. 172, 175, 399 S.E.2d 595, 596 (1991); Broaddus, 361 S.C. at 542, 605 S.E.2d at 583......
  • State v. Kirton, No. 4470.
    • United States
    • Court of Appeals of South Carolina
    • December 17, 2008
    ...have affected the result of the trial.'" State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) (quoting State v. Key, 256 S.C. 90, 93, 180 S.E.2d 888, 890 (1971)); accord State v. Sherard, 303 S.C. 172, 175, 399 S.E.2d 595, 596 (1991); Broaddus, 361 S.C. at 542, 605 S.E.2d at 583......
  • State v. Sims, No. 4371.
    • United States
    • Court of Appeals of South Carolina
    • April 17, 2008
    ...369 S.C. 424, 429, 632 S.E.2d 845, 847-848 (2006) (citing State v. Frank, 262 S.C. 526, 533, 205 S.E.2d 827, 830 (1974)); State v. Key, 256 S.C. 90, 94, 180 S.E.2d 888, 890 (1971); State v. Funderburk, 367 S.C. 236, 239, 625 S.E.2d 248, 249-250 (Ct.App. 2006); Preslar, 364 S.C. at 472, 613 ......
  • State v. Lyles, No. 4406.
    • United States
    • Court of Appeals of South Carolina
    • June 6, 2008
    ...affected 665 S.E.2d 205 the result of the trial.'" State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) (quoting State v. Key, 256 S.C. 90, 93, 180 S.E.2d 888, 890 (1971)); accord State v. Sherard, 303 S.C. 172, 175, 399 S.E.2d 595, 596 (1991); Broaddus, 361 S.C. at 542, 605 S.E......
  • Request a trial to view additional results
50 cases
  • State v. Martucci, No. 4438.
    • United States
    • Court of Appeals of South Carolina
    • September 24, 2008
    ...have affected the result of the trial.'" State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) (quoting State v. Key, 256 S.C. 90, 93, 180 S.E.2d 888, 890 (1971)); accord State v. Sherard, 303 S.C. 172, 175, 399 S.E.2d 595, 596 (1991); Broaddus, 361 S.C. at 542, 605 S.E.2d at 583......
  • State v. Kirton, No. 4470.
    • United States
    • Court of Appeals of South Carolina
    • December 17, 2008
    ...have affected the result of the trial.'" State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) (quoting State v. Key, 256 S.C. 90, 93, 180 S.E.2d 888, 890 (1971)); accord State v. Sherard, 303 S.C. 172, 175, 399 S.E.2d 595, 596 (1991); Broaddus, 361 S.C. at 542, 605 S.E.2d at 583......
  • State v. Sims, No. 4371.
    • United States
    • Court of Appeals of South Carolina
    • April 17, 2008
    ...369 S.C. 424, 429, 632 S.E.2d 845, 847-848 (2006) (citing State v. Frank, 262 S.C. 526, 533, 205 S.E.2d 827, 830 (1974)); State v. Key, 256 S.C. 90, 94, 180 S.E.2d 888, 890 (1971); State v. Funderburk, 367 S.C. 236, 239, 625 S.E.2d 248, 249-250 (Ct.App. 2006); Preslar, 364 S.C. at 472, 613 ......
  • State v. Lyles, No. 4406.
    • United States
    • Court of Appeals of South Carolina
    • June 6, 2008
    ...affected 665 S.E.2d 205 the result of the trial.'" State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) (quoting State v. Key, 256 S.C. 90, 93, 180 S.E.2d 888, 890 (1971)); accord State v. Sherard, 303 S.C. 172, 175, 399 S.E.2d 595, 596 (1991); Broaddus, 361 S.C. at 542, 605 S.E......
  • Request a trial to view additional results

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