State v. Maxey
| Decision Date | 30 October 1950 |
| Docket Number | 16422. |
| Citation | 62 S.E.2d 100,218 S.C. 106 |
| Parties | STATE v. MAXEY. |
| Court | South Carolina Supreme Court |
[Copyrighted Material Omitted]
C. T. Graydon, Columbia, for appellant.
Solicitor T. P. Taylor, Columbia, for respondent.
The defendant, Russell B. Maxey, was convicted of burglary and assault and battery with intent to kill, charged in two counts of the indictment. His punishment was assessed six and a half years imprisonment, from which he appeals.
Error is assigned because a juror, John W. Miles, was excused by the trial judge after having been examined on his voir dire. This juror stated that he would be guided entirely by the law and the evidence, and would render an impartial verdict. He said however, that he was a friend of the appellant and that his friendship might embarrass him in rendering a true and proper verdict. He was thereupon excused by the trial judge.
The findings of the trial court on questions of fact relating to the fitness of a juror are conclusive, and will not be disturbed on review unless manifestly erroneous. This principle of law is so well established that it hardly becomes necessary to cite authority to sustain it. Many cases are collected and discussed in State v. Faries, 125 S.C. 281, 118 S.E 620.
The appellate court in reviewing the trial court's discretion always takes into consideration and makes allowance for that court's opportunity to see and assess the juror's competency by personal examination. That court is in a far better position to judge of the capacity, intelligence and impartiality of the juror than is the appellate court. There is nothing in the record in this case to show any error on the part of the trial judge in excusing the juror in question. One of our latest cases dealing with this subject is State v. Miller, 211 S.C. 306, 45 S.E.2d 23.
Nor did the court commit error in allowing the State to include in the indictment in separate counts a charge to of burglary, which is a felony, and a charge of assault and battery with intent to kill, which is a non-felonious crime.
At common law, a count for felony could not be joined with one of misdemeanor. The apparent necessity for the rule arose from the fact that one charged with a felony at common law was denied certain privileges afforded upon indictment for a misdemeanor. One indicted for a misdemeanor could appear by counsel; one charged with a felony was denied counsel. 2 Chitty, Bl.Com.Bk. 4, Page 286, Note 22.
The reason for the rule has long ceased to exist. The modern trend of decision has been to permit the joinder of felony and misdemeanor counts in the same indictment, when one and the same criminal transaction is involved in the separate counts, or the felonies and misdemeanors charged form distinct stages in the same offense. State v. Lee, 147 S.C. 480, 145 S.E. 285; Herman v. People, 131 Ill. 594, 22 N.E. 471, 9 L.R.A. 182; McDaniel v. Commonwealth, 165 Va. 709, 181 S.E. 534; 27 Am.Jur., Sec. 132, Page 690.
For the reasons stated, the exception raising this issue is overruled.
It is next contended that the State failed to prove at least three of the requisite elements of the crime of burglary, viz.: (1) A breaking, (2) an entry of the dwelling house, (3) with the intent to commit a felony therein. 12 C.J.S., Burglary, § 1b, page 665. It is argued that there is no breaking in entering a house and therefore no burglary, if the person entering has a right to do so. But the evidence in this case does not sustain the contention that the appellant was authorized or possessed the right to enter the house of Miss Ann B. Pierce upon whom he is charged with having committed on assault and battery with intent to kill.
In discussing this legal issue, it becomes necessary to review the voluminous evidence offered at the trial.
At the time of the commission of the offenses charged in the indictment, which occurred in the early morning hours of August 3, 1949, the appellant was a teacher in the Department of Engineering in the University of South Carolina. He was forty years of age. The prosecuting witness, Ann B. Pierce, was a registered nurse who worked for the Polio Foundation in the City of Columbia. She was thirty five years of age and lived alone in her own house located in a suburban area near the City of Columbia. The parties had known each other for slightly more than a year before the commission of the crime. The friendship and intimacy which appears to have existed between appellant and Miss Pierce originally arose out of their mutual interest in photography. He was experienced in this field, and they had other similar interests. Their friendship ripened, and their relations became close. He was a married man, which fact was unknown to her, and she was a divorcee.
In the course of their association, they visited several places of interest, including seaside resorts, and on one of these occasions he took several photographs of her in the nude. About February, 1949, she rejected his proposal of marriage, after which for the first time he told her that he was married and that he and his wife lived together in the City of Columbia. He persisted in his attentions,--which had evidently become irksome and disagreeable to Miss Pierce,--and informed her that he was then in process of getting a divorce. To further his aims and to force her consent to marriage, he theatened to send the photographs or figure studies of her body to her friends, and he related to her an incident where another girl, in Tennessee, had refused to marry him under similar circumstances.
Miss Pierce continued to see him, because, as she stated, she was afraid he might carry out his threat of exposure; and she tried to get the pictures into her possession, and the negatives destroyed.
The testimony of Miss Pierce, amply corroborated, tends to show unquestioned title to her home; it was her property. That on the evening of August 3, 1949, at her home, and prior thereto, she requested and ordered him to leave her home and stay off of her property. On this occasion, upon his departure from her home, she locked all of the doors, and later went out for a short while, leaving the doors locked. Upon her return home shortly after twelve o'clock in the night, she entered the front door and locked it behind her. She then went to her bedroom and disrobed for bed. It was then that the attack was made upon her by appellant, who had entered the house during her absence, using a key to the back door, a duplicate of which could be bought at any Ten Cents Store; and who had secreted himself beneath her bed, or in the space between the bed and the adjacent wall. He had returned to her home in his automobile, had hidden his car in a wooded area on a dead-end road nearby, and carried with him from the car to her house his pistol--a German Mauser--bullets, and a flashlight. Before gaining entrance by unlocking the back door, or after entry, he removed his shoes and placed them, the flashlight and the bullets behind Miss Pierce's bedroom door, where they could not be seen. Miss Pierce testified that she had never given him a key to the house, and had repeatedly asked him not to come upon the premises. The savage attack which he made upon her with the pistol butt, and other evidence to which we shall hereafter refer, was ample for the jury to reach the conclusion that the defendant had the intent to commit murder at the time of entering Miss Pierce's house, and thereafter when the actual attack was in progress. He denied the intent to kill, and stated that he returned to the house to obtain an explanation of her reason for selling the property in which he claimed a financial interest. He said the attack commenced when she called him an eavesdropper and applied an ugly epithet to him.
A breaking, essential to constitute the crime of burglary, may be by any act of physical force, however slight, whereby any obstruction to entering is forcibly removed. It does not require violent or mechanical force to constitute a burglarious breaking. Opening a window, picking a lock, or opening a door with a key is sufficient. If any force be required and employed to remove or displace that which has been placed there to close the opening, this is enough. State v. Chappell, 185 S.C. 111, 193 S.E. 924; State v. Bee, 29 S.C. 81, 6 S.E. 911; Annotation, 139 Am.St.Rep. 1046.
Error is assigned because there was not sufficient evidence of malice to submit to the jury the charge of assault and battery with intent to kill.
In State v. Thompson, 76 S.C. 116, 56 S.E. 789, 791, the court upheld this charge to the jury: '[Malice] is implied from a wanton and willful act having been done without legal provocation.'
Many definitions of malice may be found in our reports, as will be seen by reference to State v. Heyward, 197 S.C. 371, 15 S.E.2d 669; State v. Milam, 88 S.C. 127, 70 S.E. 447; and State v. Gallman, 79 S.C. 229, 60 S.E. 682. Malice will of course be presumed from the use of a deadly weapon provided it was used in such a manner as to indicate an intention to kill. Fortner v. State, 119 Fla. 150, 161 So. 94.
When the evidence bearing upon the assault committed by appellant is reviewed in the light of the foregoing authorities, it clearly appears that there is sufficient evidence of malice to sustain the conviction.
The record tends to show the animosity which appellant harbored against Miss Pierce because of jealousy, and because of her refusal of his offer of marriage, which he said could be effected after he secured a divorce from his wife, and his threats to show the nude pictures he had taken of her to her friends because of her persistence in refusing to continue her intimate association with him. The record tends to show that he...
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