State v. Nicholson, 16631

• Decision Date: 28 May 1952
• Docket Number: No. 16631,16631
• Parties: STATE v. NICHOLSON.
• Court: South Carolina Supreme Court

Page 306

71 S.E.2d 306

221 S.C. 472

STATE v. NICHOLSON.

No. 16631.

Supreme Court of South Carolina.

May 28, 1952.

John B. Baltzegar, Jr., Orangeburg, for appellant.

Julian S. Wolfe, Sol., Orangeburg, for respondent.

STUKES, Justice.

Appellant was convicted of violation of Sec. 1165 of the Code of 1942 which makes a misdemeanor the possession of named tools and, quoting from the statute, 'or other implements or things adapted, designed or commonly used for the commission of burglary, larceny, safe cracking, or other crime, under circumstances evincing any intent to use or employ, or allow the same to be used or employed in the commission of a crime, or knowing that the same are intended to be so used, * * *.' See the recent case of State v. Pulley, 216 S.C. 552, 59 S.E.2d 155.

Several State law enforcement officers and sheriff's deputies (six in all) lay in wait at appellant's home on the night of April 20-21, 1951, with a warrant for the arrest of him and one Elliott Dean upon another charge. Appellant and Dean arrived together in appellant's Lincoln automobile at about 4:30 A.M. (April 21) and were placed under arrest. The car was searched without objection and under the front seat was found bolt clippers about three and a half feet long. From the back of the car there were taken a pinch, crow or wrecking bar, three or four feet long, and a heavy iron chisel; two pairs of gloves and pliers (adapted to wire-cutting) were also found. Several officers testified that the tools were such as are commonly used for the commission of burglary and larceny and usually found about the scene of safe-cracking. Ordinary automobile tools (jack, lug wrench and screw driver) were also in the trunk of the car.

As originally returned, the indictment listed articles, including one pistol and parts of another, blackjacks, and a tear gas gun and cartridges, which were stricken on motion of appellant, leaving in the indictment the following: a pair of bolt clippers, a heavy chisel, a wrecking bar, a pair of pliers and three pair of canvas gloves.

When the case was called for trial at a November 1951 term of court Dean moved for continuance of the trial for one day, which was granted. He was killed that night or early the following morning. Upon convening of the court and call of the case against appellant, the following occurred, which is all that is contained in the record with reference to the motion for continuance and the ruling thereupon:

'Mr. Baltzegar:

'Mr. Nicholson was indicted along with Elliott Dean in this case. We were ready on yesterday but Your Honor granted a continuance. In fact, Mr. Dean left me late last night after discussing this case. We are asking that the case be continued on account of the death last night of Mr. Dean.

'The Court:

'I don't see how the unfortunate death of Mr. Dean would have any effect on the right of this defendant or in any way prejudice the trial of the defendant. I will therefore have to order the case tried.'

Appellant's first question imputes error for failure to grant the motion for continuance. It is axiomatic that such a motion is addressed to the discretion of the trial court and refusal constitutes reversible error only in cases where it is found that there has been an abuse of discretion. 7 West's South Carolina Digest,...