State v. McAdams

• Decision Date: 10 November 1932
• Docket Number: 13509.
• Citation: State v. McAdams, 167 S.C. 405, 166 S.E. 405 (S.C. 1932)
• Parties: STATE v. McADAMS et al.
• Court: South Carolina Supreme Court

166 S.E. 405

167 S.C. 405

STATE v. McADAMS et al.

No. 13509.

Supreme Court of South Carolina

November 10, 1932

Appeal from General Sessions Circuit Court of Abbeville County; C.J Ramage, Judge.

J. R McAdams, C. B. Matthews, and Felton Lancaster were charged in one count with conspiracy to forcibly steal and certain overt acts in pursuance thereof, and in another count with conspiracy to forcibly steal and assault with intent to kill in pursuance thereof, and the State elected to proceed on the first count as charging conspiracy to commit robbery, and the second count as charging assault and battery with intent to kill. Defendant McAdams was convicted on the first count and convicted of simple assault on the second count, and the other defendants were convicted on both counts, and all defendants appeal.

Affirmed.

J. M Nickles and James P. Nickles, both of Abbeville, for appellants.

H. S. Blackwell, Sol., of Laurens, and W. P. Greene, of Abbeville, for the State.

STABLER J.

The defendants, McAdams, Matthews, and Lancaster, along with two others, Kelley and Jamison, were indicted at the January, 1932, term of court of general sessions for Abbeville county. They were charged in the first count of the indictment with conspiracy to commit robbery, housebreaking, and felonious assault, and in the second count with conspiracy to steal and with assault and battery with intent to kill. Jamison and Kelley were not put on trial. The jury found Matthews and Lancaster guilty on both counts, and McAdams guilty on the first count and guilty of simple assault on the second count. Each of these defendants, after the presiding judge had refused a motion for a new trial, was sentenced to imprisonment for a period of five years. They now come to this court on appeal.

Before the appellants were arraigned, their counsel made a motion to quash the indictment, as to both the first and second counts, on the ground of "multiplicity or duplicity of charges" in each of the counts. This motion was overruled. Counsel for the appellants then stated that they desired to have an understanding with the solicitor as to what the defendants were charged with, in response to which the solicitor announced: "We are going to trial on the first count, conspiracy to commit robbery; second count, assault and battery with intent to kill."

The appellants now complain that the court was in error in refusing their motion to quash the indictment on the ground stated, for the reason that they were unable to know or determine the exact crime with which they were charged or how to defend or answer against the charges made.

We have carefully read the indictment. In brief, the first count charges that the defendants conspired and confederated together to forcibly steal the money and goods of the prosecutrix, and that, in pursuance of such conspiracy, they did break and enter her home and assault her with intent to steal and carry away her goods and chattels. The second count charges that the defendants conspired and agreed together to forcibly steal the goods and chattels of the prosecutrix, and that, in pursuance of such conspiracy, they committed an assault upon her with intent to kill her. The state contends that it does not necessarily follow that by reason of the allegations as to the overt acts actually committed, any additional charge was made in the indictment upon which the defendants might be put on trial.

Testimony for the state tended to show that the defendants resided in the city of Atlanta, Ga., and that the conspiracy alleged in the indictment was entered into in that city; that three trips were made to Abbeville, S. C., in pursuance of the alleged conspiracy, the defendant McAdams accompanying some of the others on the first trip; that on the last trip the defendants, except McAdams, entered the home of the prosecutrix and undertook to open a safe in the house, which they were, however, unable to do; that the prosecutrix and Mrs. Bowie, the only occupants of the place, were bound and gagged; and that Mrs. McAdams, the prosecutrix, was struck over the head with a pistol producing a wound from which blood flowed, and that Mrs. Bowie died some days thereafter, although it appears she suffered no violence at the hands of the defendants other than being bound and gagged. According to the testimony of the defendant McAdams, at the time the alleged assault with intent to rob was committed, he was in the city of Atlanta. Kelley and Jamison, the two defendants who were not tried, testified for the state, admitting their participation in the alleged offenses implicating the three defendants on trial.

It is evident that in order to convict McAdams in Abbeville county on a charge of conspiracy, it was necessary for the state to prove that some overt act was committed there by some one of the conspirators pursuant to the conspiracy made in Atlanta to which McAdams was a party; and for that reason it appears that the state in its indictment alleged not only the conspiracy but also the commission of the overt acts pursuant thereto. As held by the trial judge, we think this could properly be done.

In 5 R. C. L. 1076, we find the following: "A prosecution may be brought against conspirators in the county where the illegal combination or agreement was entered into. On the other hand, if an overt act in pursuance of the conspiracy is committed in a jurisdiction other than that where the combination was made, the conspirators may be prosecuted in the place where the overt act was committed. The law considers that wherever the conspirators act there they continue their agreement, and this agreement is continued as to all whenever any one of them does an act in furtherance of their common design."

However, should it be thought that we are wrong in this, it is clear that the defendants in the case at bar, in view of the understanding they had with the solicitor at the beginning of the trial, suffered no harm. As we have pointed out, the solicitor at that time stated that the charge in the first count upon which appellants would be tried was conspiracy to commit robbery, and in the second assault and battery with intent to kill. This understanding having been reached, the trial proceeded, with the approval of the court, in conformity therewith.

We think the agreement or understanding necessarily had the effect of striking from the first count of the indictment everything except those allegations applicable to the offense of conspiracy at common law, and from the second all allegations not applicable to the crime of assault and battery with intent to kill. As the case was tried on the understanding that each count in the indictment charged only one specific crime, the defendants' objections were satisfied. The appellants, therefore, cannot now properly complain that their rights were prejudiced by the court's refusal to quash the indictment on the ground made. See State v. Ameker, 73 S.C. 330, 53 S.E. 484, relied upon by the state in support of its position.

The following, in substance, appears in the record of the case The state called as one of its witnesses William Bryant, a boy about fourteen years of age. After Bryant was sworn, the presiding judge excused himself and went to his adjoining chambers. The sheriff thereupon approached the witness, who was sitting in the witness box, and talked with him about the case, in a low tone of voice, in the presence of the jury. When the judge returned, the defendants' counsel asked permission to be...