State v. Lee

• Decision Date: 08 December 1943
• Docket Number: 15598.
• Parties: STATE v. LEE et al.
• Court: South Carolina Supreme Court

28 S.E.2d 402

203 S.C. 536

STATE v. LEE et al.

No. 15598.

Supreme Court of South Carolina

December 8, 1943

H P. Burbage, of Greenville, for appellants.

W A. Bull, Sol., of Greenville, for respondent.

FISHBURNE Justice.

This is an appeal from a judgment of conviction for operating and maintaining a common or public nuisance near a public highway in the county of Greenville on December 7, 1942, and days prior thereto.

The indictment contains two counts: Under the first count, the defendants were charged with the commission of the offense under the common law, and the indictment contains averments usual in such cases, namely: "in that they did maintain and operate a place near a public highway where fighting cursing, shooting, loud and disturbing noises were permitted to be carried on; a place where evil disposed persons, rowdy persons, both men and women, come together, causing lewd and improper conduct; a place where men and women are allowed to congregate and come together for the purpose of indulging in intoxicating drinks and leave said place in an intoxicated and unbecoming condition and commit indecent and unbecoming acts, all of which is detrimental to the peace and morals, happiness, peace and safety of the people of the State living near, resorting to, and passing the said place so kept and maintained ***."

The second count charges the defendants with operating and maintaining a common nuisance under Sections 1880 and 1881, 1942 Code. The offenses charged in the two counts of the indictment grow out of the same transaction or connected transactions.

Error is assigned because the lower court refused to compel the State to elect upon which ground it would go to trial,--that is, under the count charging the common-law nuisance, or the count charging the statutory offense. We have held in several cases which are determinative of this issue, that where offenses are of the same character and spring from the same transaction, they may be joined, although one is a common-law offense, and the other a statutory offense. State v. Posey, 7 Rich.Law 484, 41 S.C.L. 484; State v. Thompson, 2 Strob. 12, 33 S.C.L. 12, 47 Am.Dec. 588; State v. Williams, 2 McCord 301, 13 S.C.L. 301; 31 C.J., Sec. 348, Page 782; 27 Am.Jur., Sec. 132, Page 690. See, also, State v. Lee, 147 S.C. 480, 145 S.E. 285, and the numerous cases therein cited.

It follows that the Circuit Court committed no error in denying the motion made by the appellants for an election.

It is next complained that the court erred in charging the jury that "Where members of the public are likely to come within the range of its (the nuisance) influence; and it seems to be sufficient to constitute acts or conditions a public nuisance, if injury and annoyance are occasioned to such a part of the public as come in contact therewith." This instruction is in substantial accord with what we held in the recent case of State v. Turner, 198 S.C. 487, 18 S.E.2d 372, 375, where it is said: "'Furthermore, it undoubtedly is true that a nuisance is a public one if it occurs in a public place, or where the public frequently congregate, or where members of the public are likely to come within the range of its influence; and it seems to be sufficient to constitute acts or conditions a public nuisance if injury and annoyance are occasioned to such part of the public as come in contact therewith.' See Morison v. Rawlinson, 193 S.C. 25, 7 S.E.2d 635."

Several other exceptions elaborate this alleged error of the court. An examination of the entire charge shows without question that it follows the principles laid down in State v. Turner, supra, and contains no error.

While evidence was being offered by the appellants, their counsel called as a witness for the defense, Mr. W. A. Bull, who was conducting the prosecution for the State in place of Solicitor Robert Ashmore, then in the military service of the United States. The jury was excused, and counsel for the defense stated that he expected to prove by Mr. Bull that prior to his service as solicitor he had acted as attorney for the father of the defendant, Dock Glenn, who, we infer, at one time operated the filling station and road house where the alleged nuisance is said to have been maintained. The elder Glenn is now dead. It appeared that Mr. Bull in 1941 drew his will, and had been to the filling station on two or three occasions in connection with the preparation and execution of the will, and had passed the place at other times. Counsel for appellants stated that he wished to ask Mr. Bull if on these occasions he had observed any disorder at the road house or cabins. The solicitor announced that he had no objection to being called as a witness if the court deemed the matter relevant; that he had been to the filling station on two or three occasions.

The court held that the acting solicitor, who was then in the active prosecution of the case, was incompetent to testify by reason of his office, and that in addition thereto the testimony sought to be elicited was merely negative. The appellants contend that no distinction should have been made, and that none exists, as between the prosecuting attorney and any other person called as a witness by the defense in the trial of the case.

It is said in 70 C.J., Sec. 247, page 183: "Although a prosecuting attorney is competent to testify, his testifying is not approved by the Courts except where it is made necessary by the circumstances of the case, and, if he knows before the trial that he will be a necessary witness, he should withdraw and have other cou...