State v. Kimbrough
| Citation | 46 S.E.2d 273,212 S.C. 348 |
| Decision Date | 12 February 1948 |
| Docket Number | 16043. |
| Parties | STATE v. KIMBROUGH. |
| Court | South Carolina Supreme Court |
Thomas W. Whiteside and C. Yates Brown, both of Spartanburg, for appellant.
Samuel R. Watt, Sol., of Spartanburg, for respondent.
This opinion will be substituted for the opinion heretofore filed.
Appellant was convicted of burglary. His appeal raises two questions (1) Did the trial Judge err in refusing a motion for a directed verdict of not guilty on the ground that the evidence was insufficient to sustain a conviction? (2) Is the sentence imposed manifestly excessive?
Appellant offered no testimony. The circumstances relied on by the State to support a conviction are substantially as follows:
Between three and four o'clock on the morning of December 3 1946, someone broke into and entered a room on the fifth floor of the Franklin Hotel located in the city of Spartanburg and stole a watch and chain. This room was occupied by a prominent citizen of Spartanburg who had lived there for a number of years. He testified that about eight or nine o'clock on the night of the burglary he locked his door and retired, leaving his watch and chain on a small bookcase near the head of his bed; that shortly before 4:00 A.M. he woke up suddenly and saw a white man just as he left the room and closed the door; that he missed his watch and chain and immediately telephoned the night cherk and reported the occurrence. The clerk notified the police and requested two of the bellboys to meanwhile watch the elevator and stairways. One of these bellboys caught the elevator and the other went up the stairway, but neither saw anyone.
Several policemen who were in a radio patrol car in this vicinity received a call to go to the hotel and arrived in a few minutes. One of them went to the room that had been burglarized and found that the key had been pushed out and was hanging on the inside of the door. After talking to the occupant of this room and several of the hotel employees this policeman proceeded to a room on the second floor which was occupied by appellant. (The testimony does not disclose what information was furnished this officer which led him to go to this room.) He testified: This officer further testified that when appellant opened the door he was alone in the room and in his underclothes; that the cover on the bed 'had been pulled back,' but it was clearly apparent that no one had slept in it; that one of the windows to the room was up and the screen pushed out; and that an examination showed the tacks holding the screen had been 'freshly pulled out.' Appellant was then arrested and carried to the room on the fifth floor in order to determine whether he could be identified.
The occupant of this room testified as follows on the question of identity: He said that the street lights and the light in the hall enabled him to make this observation.
The officers carried appellant to jail and then returned to the hotel. One of them went to appellant's room and held a flashlight out of the window in which the screen had been broken, while the other officer examined the ground underneath in an effort to find the watch and chain. They were soon found on the ground at a place almost, if not directly, under the window. The chain had been detached from the watch.
Appellant had a driver's license which gave his address as 872 Melton Street, Spartanburg, but inquiries at this place disclosed that he had never lived there. He stated to the officers that he did not have any home; that the last work he did was traveling with a carvinal; and that his people lived in California. He declined, however, to discuss the charge which had been preferred against him.
The office and function of the Court in passing on a motion for a directed verdict of acquittal and the rule governing circumstantial evidence are well established in this State and need not be restated. We had occasion to discuss these questions and review the authorities in the recent case of State v. Epes, 209 S.C. 246, 39 S.E.2d 769. After careful consideration of the evidence, together with the inferences which may legitimately be drawn therefrom, we think the Court below committed no error in refusing appellant's motion for a directed verdict of acquittal and submitting the case to the jury. There is strong circumstantial evidence tending to show that appellant had this watch and chain in his room and dropped them from the window to avoid being found in possession of this property. If the jury found that he had possession of this recently stolen property, this fact, with the other circumstances in the case, was sufficient to warrant an inference of guilt. State v. Campbell et al., 131 S.C. 357, 127 S.E. 439; McNamara v. Henkel, 226 U.S. 520, 33 S.Ct. 146, 57 L.Ed. 330.
The remaining question is appellant's contention that the sentence imposed is unduly severe and manifestly excessive and violates that portion of Article 1, Section 19 of the Constitution which forbids the infliction of cruel and unusual punishment.
The punishment for burglary is fixed by Section 1138 of the Code of 1942, which is as follows: 'Any person who shall commit the crime of burglary at common law shall, upon conviction, be imprisoned in the state penitentiary, with hard labor, during the whole lifetime of the prisoner: provided, however, that in each case where the prisoner is found guilty, the jury may find a special verdict, recommending him to the mercy of the court, whereupon the punishment shall be reduced to imprisonment in the penitentiary, with hard labor for a term of not less than five years.' (Italics ours.) In the instant case the jury found a verdict of guilty with recommendation to mercy and the trial Judge imposed a sentence of thirty years.
We have been greatly perturbed by this feature of the case. In the opinion heretofore filed, a majority of the Court concluded that although the sentence imposed was rather severe, it was not so grossly disproportionate to the offense committed as to constitute a manifest abuse of discretion on the part of the trial Judge. A petition for a rehearing was filed. It was granted solely as to this question which has now been reargued.
The Eighth Amendment of the Constitution of the United States, as well as the constitutions of a number of states, contains a provision similar to ours prohibiting cruel and unusual punishment. Although there are decisions to the effect that the provision against cruel and unusual punishment is applicable solely to the kind of punishment, and not to its amount or duration, according to the weight of authority, the punishment for a crime, while not cruel and unusual in kind, may be so severe as to fall within the meaning of this provision. 15 Am.Jur., Criminal Law, Section 535, page 178. An interesting discussion of the history of this clause and the differene views entertained as to its purpose and meaning will be found in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, 19 Ann.Cas. 705. It was stated in Singletary v. Wilson, Superintendent, 191 S.C. 153, 3 S.E.2d 802, that this constitutional restriction should be regarded as an admonition to both the legislature and the judiciary.
The power of an appellate court to review a sentence for the purpose of determining whether it offends the constitutional provision against cruel and unusual punishment may be sustained under the grant of power to correct errors of law in the judgment appealed from. 3 Am.Jur., Appeal and Error Section 1182, page 689. Moreover, there exists in every court an inherent power to see that a man's fundamental rights are protected in every case. In Matheson et al. v. McCormac et al.,...
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...or corrupt motive. State v. Phillips, 215 S.C. 314, 54 S.E.2d 901; State v. Scates, 212 S.C. 150, 46 S.E.2d 693; State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273; State v. Greogry, 198 S.C. 98, 16 S.E.2d The issue then is: Was the imposition of the fine and the sentence of five years unreaso......
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...N.E.2d 705 (1975); In Re Yell, 107 Mich. 228, 65 N.W. 97 (1895); Mannon v. State, 788 S.W.2d 315 (Mo.Ct.App.1990); State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273 (1948); Singletary v. Wilson, 191 S.C. 153, 3 S.E.2d 802 (1939); Southern Express Co. v. Walker, 92 Va. 59, 22 S.E. 809 (1895); ......
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