State v. Lytchfield, No. 17244

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: STUKES
• Citation: 230 S.C. 405,95 S.E.2d 857
• Parties: , 66 A.L.R.2d 263 The STATE, Respondent, v. Lester LYTCHFIELD, Appellant.
• Docket Number: No. 17244
• Decision Date: 02 January 1957

Page 857

95 S.E.2d 857 230 S.C. 405, 66 A.L.R.2d 263 The STATE, Respondent,
v.
Lester LYTCHFIELD, Appellant. No. 17244. Supreme Court of South Carolina. Jan 2, 1957.

Page 858

[230 S.C. 407] Joseph A. Newell, Moncks Corner, Thomas P. Stoney, Charleston, for appellant.

Page 859

Solicitor J. C. Hare, Charleston, for respondent.

STUKES, Chief Justice.

The appellant was convicted of reckless homicide in the death of a passenger in his automobile which resulted from the wrecking of the car on April 2, 1955, while he was driving it. The evidence established that the car went out of control, left the paved highway and thereafter traveled about 300 feet, crossed a ditch, knocked down a tree, crossed another ditch and came to rest against a second tree. The automobile, an Oldsmobile Rocket, was demolished and two of the three passengers, who were riding on the front seat, were killed. The evidence leaves no doubt that appellant had [230 S.C. 408] been drinking intoxicants and was driving in a most reckless manner.

The case was called for trial at Moncks Corner on Tuesday, October 11, 1955, whereupon appellant's counsel, who had also represented him at the coroner's inquest sometime before, moved for a continuance upon the ground that his associate, a Florence attorney, whom he also referred to as 'probably the chief counsel in the case', had telephoned him that morning that he had a tooth extracted on the night before and was unable to engage in the trial. The Solicitor had no former knowledge of the absent attorney's connection with the case; he had been in court on the day before and made no mention of his representation of the appellant. (Other grounds of the motion for continuance will be later discussed.)

The trial judge declined to continue the trial because of the absence of the associate counsel, for the reason that the court would 'break down' and the promotion of justice required that the court operate in view of the attendance of thirty-odd jurors, some of whom had come from their homes thirty or more miles distant. The court further noted that able counsel was on hand to proceed with the case.

Long after the trial the absent counsel made an affidavit, dated November 29, 1955, that he was employed by appellant about the middle of September and the resident counsel consented to his association in the case. The affiant was paid a substantial fee by appellant in installments, the last on October 10, when preparations were made for trial on the next day. On the night before affiant had a tooth extracted which caused swelling and temperature and his dentist advised him not to participate in the trial on October 11, but that he could do so on October 12. Affiant telephoned the associate resident counsel and asked that he request continuance of the case for at least one day, failing which affiant was unable to engage in the trial. Thereafter he refunded to appellant the fee except a comparatively small portion which was not more than the amount of his expenses [230 S.C. 409] in preliminary investigation of the case. He did not participate in the motion for new trial (see infra) and did not appear in this appeal; other able counsel assisted in the presentation of the appeal. No certificate of the dentist was presented at any time.

The granting or refusal of a motion for continuance is within the discretion of the trial judge and his disposition of such a motion will not be reversed on appeal unless it is shown that there was an abuse of discretion to the prejudice of appellant. A multitude of cases to this effect will be found in 7 S.C.Dig., Criminal Law, k586 et seq., p. 504 et seq. and supplement. Review of them shows that reversals of refusal of...