State v. McIntire, 16636

Citation71 S.E.2d 410,221 S.C. 504
Decision Date10 June 1952
Docket NumberNo. 16636,16636
CourtUnited States State Supreme Court of South Carolina
PartiesSTATE v. McINTIRE et al.

James P. Mozingo III, Darlington, A. Frank Lever, Jr., Lexington, for appellants.

T. P. Taylor, Sol, Columbia, for respondent.

FISHBURNE, Justice.

The grand jury of Richland County jointly indicted the appellant, Harry Goff, and twenty-one codefendants, charging in the first count that they did on September 28, 1950, 'at Lexington County Court House and Richland County Court House * * * wilfully and unlawfully * * * conspire together to publicly and privately erect, set up and expose to be played, a certain lottery * * * wherein and whereby the use of certain numbers, figures, tickets or chances were to be had and offered to certain persons unknown, wherein and whereby for the payment of certain sums of money, differing in amounts, the holder of said numbers * * * were to participate in a lottery * * * commonly known as the 'numbers game,' whereby said sums of money to be paid were to be ventured for the chances of obtaining larger sums in money.'

In the second count, the indictment alleges in practically the same words as contained in the first count, wherein the conspiracy is charged, that the various defendants in furtherance of the common design did actually erect, set up and expose to be played a certain lottery commonly known as the 'Numbers Game,' in the County of Richland.

Upon trial of the case, all of the defendants whose cases were submitted to the jury were convicted. The present appellant, Goff, is the only one who has appealed from the verdict and judgment of the court.

The first ground of appeal assigns error to the trial court in refusing to grant appellant's motion to quash the indictment upon the ground that the indictment did not contain a sufficient statement of facts in plain and concise language so as to inform him of the charge and to enable him to prepare an adequate defense thereto. In our opinion, there is no merit in this contention.

The necessary elements in an indictment are set forth in Section 1003 of the Code 1942. It is therein stated that every indictment shall be deemed and judged sufficient and good in law which in addition to allegations as to time and place, as now required by law, charges the crime substantially in the language of the common law or of the statute prohibiting the same, or so plainly that the nature of the offense charged may be easily understood.

The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the necessary elements of the offense intended to be charged, and sufficiently apprise the defendant of what he must be prepared to meet.

The general rule on this question is that the offense must be so described that the accused may know how to answer the charge, the court what judgment to pronounce, and conviction or acquittal thereon may be pleaded in bar to any subsequent prosecution. State v. Wells, 162 S.C. 509, 161 S.E. 177.

As stated in 15 C.J.S., Conspiracy, § 80, page 1112, 'It is not necessary to detail the evidence of the conspiracy in the indictment, nor to recite the facts connecting all of the accused with one another in the web of the conspiracy, nor to describe the conspiracy with the same degree of particularity required in describing a substantive offense. * * *'

In our opinion, the wording of the indictment is not ambiguous or inconsistent as argued by appellant. The facts alleged show that the offense was committed within the jurisdiction of the court--that is, in Richland County, where the case was tried.

As shown in State v. Fisher, 206 S.C. 220, 33 S.E.2d 495, 496, 'The twofold purpose of the statute in requiring the indictment to allege the 'place' of the commission of the crime is to lay jurisdiction of the court, and inform the accused of the county in which he is charged with the violation of the law.' The indictment in this case fully complies with the requirements of the law. To the same effect see State v. Colclough, 31 S.C. 156, 9 S.E. 811; State v. Burbage, 51 S.C. 284, 28 S.E. 937; State v. Cole, 107 S.C. 285, 92 S.E. 624.

The rule is further clarified in cases involving the criminal charge of conspiracy in State v. Hightower, S.C., 69 S.E.2d 363, where the court quoted from 15 C.J.S., Conspiracy, § 83, page 1116: "Where over acts have been committed in furtherance of the conspiracy, the conspiracy is renewed as to all the conspirators at the place where the overt act is done, and it is not then necessary to allege the exact place where the conspiracy was originally formed."

Similar attacks were made upon the sufficiency of the indictment in the Hightower case supra, and the more recent case of State v. Ferguson, S.C., 70 S.E.2d 355.

As stated, we think that the indictment in this case fully complied with the applicable law and with our decisions construing the same.

The next question presented is closely related to the one which we have just discussed. It is argued that the court erred in holding that the General Sessions Court of Richland County had jurisdiction of the case, the error being that there was a total failure and lack of evidence against the appellant as charged in the indictment so as to give jurisdiction to the Richland County Court. This issue has been decided adversely to the position taken by appellant in several cases. State v. Hightower, S.C., 69 S.E.2d 363; State v. Farne, 190 S.C. 75, 1 S.E.2d 912; State v. McAdams, 167 S.C. 405, 166 S.E. 405.

In the foregoing cases, the principle has been announced and re-announced that 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 the agreement, and this agreement is continued as to all wherever one of them does an act in furtherance of their common design.

Of course, for the Richland County Court to have jurisdiction to try the appellant for conspiracy, it must be alleged and proved that the conspiracy was entered into, and that in furtherance of the conspiracy there was an overt act which took place in Richland County. An examination of the indictment and of the record will show that such requirements have been met. It is needless to restate the contents of the indictment here.

We next consider whether the Court erred in refusing to direct a verdict of the guilty for appellant at the close of the State's evidence, and also in refusing to grant a new trial upon the ground that the evidence was insufficient to sustain a conviction of conspiracy, or that the appellant was in any way connected with the same.

The appellant, Goff, offered no evidence; neither did any of the other defendants charged in the indictment. Son on this issue we proceed to consider the evidence introduced by the State.

An examination of the record shows that officers from the sheriff's office in Lexington County and other police officials raided what was presumed to be an abandoned building called 'Green Acres,' in Lexington County, just outside the limits of West Columbia, on September 28, 1950. This building had formerly been operated as a restaurant by the defendant, Harry Goff, but it had been closed pursuant to an order of court. This raid was made about 12:30 o'clock p. m. on the day in question, in consequence of explicit information that a lottery or 'Numbers Game' was being operated there. The officers found the building barricaded with steel bars in the windows. After much effort, the building was broken into by the officers, and they fund inside two Negroes and a white man. They discovered that an air conditioning system had been in use; and before their forced entrance five or six telephones admittedly had been torn from the wall.

There were two safes in the building. The three men referred to claimed they could not open the safe in the front room. After some delay, an expert was secured who succeeded in opening it. The officers took from the safe a large number of lottery tickets, with daily tabulations of total amounts represented by the tickets. These tickets had been sold by 'Writers,' as they were called, who operated in West Columbia, in Lexington County, and in the City of Columbia, in Richland County. They found slips of paper with telephone numbers opposite certain figures. These figures were identified by the evidence as the writing numbers of various Writers living and operating in the City of Columbia, and the telephone numbers were those by which they could be reached.

We will not undertake to explain in detail the operation of the Numbers Game, which the evidence tends to show was carried on by the defendant and his confederates. The lucky or winning number was determined by the bond and stock market reports published in the daily newspapers.

Before the officers gained entrance to the Green Acres building, they observed an automobile approaching on the road leading thereto. When opposite the building, the car slowed down and came practically to a stop, and then raced away. It was driven by the appellant, Goff, as shown by the record; and although the officers gave chase, they were unable to overtake this car, and finally lost sight of it. The evidence tends to show that his codefendant, McIntire, was in active charge of the lottery operation at Green Acres, which as stated, permeated both Lexington and Richland Counties.

In the afternoon of September 28, 1950, after the raid at Green Acres, the appellant, Goff, and his codefendant, McIntire, were arrested by the officers at a filling station in Columbia. They were enroute to the police station when Goff was told by the officers that they had been unable to open a safe which they found in the back room of the Green Acres building. Goff stated that...

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