State v. McDowell

• Decision Date: 02 March 1948
• Docket Number: 16050.
• Parties: STATE v. McDOWELL.
• Court: South Carolina Supreme Court

46 S.E.2d 549

212 S.C. 70

STATE v. McDOWELL.

No. 16050.

Supreme Court of South Carolina

March 2, 1948

George W. Freeman, Jr., J. E. Dudley and William F Stevenson, all of Bennettsville, and Neville Bennett, of Clio, for appellant.

Sidney S. Tison, Sol., of Bennettsville, for respondent.

TAYLOR Justice.

The appellant, Rudolph McDowell, was tried and convicted of assault and battery with intent to kill at the 1946 Fall Term of General Sessions Court for Marlboro County. At the conclusion of the State's case, attorneys for the appellant made a motion for a directed verdict of not guilty which was refused; and the case submitted to the jury who found the appellant guilty as charged. Motion was duly made for a new trial which was refused, and the appellant sentenced to three years at hard labor upon the public works of Marlboro County or a like period in the State Penitentiary, from which judgment and sentence the defendant now appeals to this Court upon exceptions which raise the following questions:

1. Whether or not the Court erred in refusing the motion for a directed verdict of not guilty at the conclusion of the State's case.

2. Should there not have been a charge as to lesser offenses under the indictment of assault and battery with intent to kill?

3. Should not the evidence as to a second gun have been striken?

4. Was the charge of presumption of defendant's innocence in error?

5. Was it error not to grant a new trial upon motion of defense counsel, the error being that the evidence did not show the guilt of the defendant beyond a reasonable doubt?

6. Did the Court err in refusing the motion for a new trial in that there was no charge as to circumstantial evidence?

Appellants state that their main contention is based on the exceptions which raise the first question.

An examination of the testimony shows that on or about the 30th of March, 1946, at about 10:00 o'clock p. m., while on their back porch, Mr. and Mrs. J. C. Clark and their young son Marion Wallace Clark, about thirteen years of age, were fired upon with a shot gun by some one from the dark, all three being hit. There is testimony to the effect that some time prior to that, trouble had developed between the Clarks and McDowell because of the McDowell dog eating eggs McDowell being requested to keep his dog up. But some time during December of the previous year, the dog was loose again and killed a small dog belonging to the Clarks on their porch, whereupon Marion Wallace Clark shot and killed the McDowell dog. While looking at the dying dog, McDowell told the boy that 'Shooting the dog will shorten your days.' There was also testimony to the effect that tracks led from near the chicken yard, where an empty shotgun shell was found, to the defendant's back porch. Silas Jackson, Jr., who had been jointly indicted with the defendant, plead guilty as charged at the previous term of Court and implicated the defendant, and testified for the State in this case to the effect that he had done the shooting at the solicitation of the defendant who had discussed the proposed shooting with him before the night in question; that on this occasion, McDowell accosted him, saying that he had two shotguns (one painted and one not painted) in the car; that he and McDowell went to the Clark place together; that after he had fired one shot, he reloaded and fired again at the boy, the gun being a single-barrelled gun, and McDowell having given him two shells, whereupon he handed the gun to the defendant and left the scene, going to his father's home; that this happened on a Saturday night and he was arrested the following Thursday; that at the time of the shooting, he had one gun and McDowell had another, and that McDowell told him, 'If I ever hear of you giving me away on this case, I am going to get you.'

There are many discrepancies in the witness Silas Jackson Jr.'s testimony, such as, at one time he says that he fired the shots immediately upon reaching the scene, while at another he says he waited thirty minutes. At one time, he says the defendant offered to pay him $25, which he refused, and that McDowell then threatened him with a...