State v. Pierce, No. 19874

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: Deputy Atty. Gen.; BUSSEY; MOSS
• Citation: 207 S.E.2d 414,263 S.C. 23
• Parties: The STATE, Respondent, v. William J. PIERCE, Jr., Appellant.
• Docket Number: No. 19874
• Decision Date: 08 August 1974

Page 414

207 S.E.2d 414 263 S.C. 23 The STATE, Respondent,
v.
William J. PIERCE, Jr., Appellant. No. 19874. Supreme Court of South Carolina. Aug. 8, 1974.

Page 416

[263 S.C. 26] Joseph T. McElveen, Jr., Sumter, James M. Connor and William E. Jenkinson, III, Kingstree, for appellant.

Deputy Atty. Gen., J. C. Coleman, Columbia, Sol. R. Kirk McLeod and Asst. Sol. Robert W. Burkett, Sumter, for respondent.

BUSSEY, Justice:

Defendant was indicted in Sumter County for the murder of Peg Cuttino and, after a change of venue was tried at the February, 1973 term of the Court of General Sessions for Williamsburg County. The jury returned a verdict of guilty and defendant was sentenced to life imprisonment. Notice of appeal was timely filed and this appeal followed.

Defendant's first contention is that the trial judge erred in refusing to grant his motion to strike certain testimony of State's witness Earl Williams.

Peg was reported missing on the afternoon of Friday, December 18, 1970, and her body was discovered buried under some leaves and small limbs in Manchester Forest in Sumter County on December 30, 1970. The indictment alleged that defendant had murdered Peg on December 18.

Williams testified that, while he and his father were in Manchester Forest hunting and cutting wood on the afternoon of Saturday, December 19, he saw defendant some 100--300 feet away standing in front of a white station wagon. Williams further testified that defendant looked toward him and his father and stood in front of the car so that its license plate could not be seen. Williams stated that [263 S.C. 27] defendant was still standing in front of the car when he and his father left the forest some two hours later.

The State also introduced testimony by certain law enforcement officials as to an oral confession obtained from defendant while he was incarcerated in Georgia. The voluntariness of this confession is not attacked on this appeal. The defendant in his testimony admitted making the confession but repudiated the incriminating content thereof. In this confession defendant said he drove over to Sumter from Swainsboro, Georgia, on Friday, December 18, and picked Peg up at a hamburger stand. Defendant said he then drove Peg out to Manchester Forest where he killed her.

Defendant introduced testimony by his employer that he was at work from shortly after 7 a.m. on Friday, December 18, until around 4 o'clock that afternoon. There was also testimony that defendant attended a party at Twin City, Georgia, on Friday night. Defendant's date for that party testified that defendant picked her up at 7 p.m. and that they returned to her house around 11:30 p.m.

Defendant contends that the trial judge should have granted his motion to strike Williams' testimony because such testimony related to a date other than the date referred to in the indictment and because defendant was prejudiced by such testimony in that he was not prepared to impeach Williams' testimony by alibi testimony.

We disagree with these contentions.

While it is true that the State need not prove the exact date set forth in the indictment unless time is an essential element of the offense or is made a party of the description of it, State v. Rutledge, 232 .s.C. 223, 101 S.E.2d 289 (1958), the State should not be allowed to prove a different date than that set forth in the indictment where defendant relies upon the defense of alibi, unless the defendant is held to have had knowledge that the State would attempt to prove a different date upon trial. In such a case it is proper for the trial judge, after allowing amendment[263 S.C. 28] of the indictment, to declare a mistrial and allow defendant time to attempt to establish an alibi defense for the different date. See State v. Evans, 216 S.C. 328, 57 S.E.2d 756 (1950). See also State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961).

However, in the present case the State did not attempt to prove that defendant committed the crime on December 19 instead

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of December 18 as alleged in the indictment. The State merely introduced evidence that defendant was in the Sumter area on December 19. The jury could have reasonably found that defendant committed the crime on December 18 and was still in the area on December 19.

Evidence to the effect that the defendant was in Sumter County on December 19 and at a spot near where the body was found, rather than being inconsistent with the indictment, was corroborative of the State's evidence tending to prove that the crime had been committed by the defendant on December 18, particularly in view of the fact that the defendant repudiated his confession and denied that he had been in Sumter County at all. It follows that there was no error in the admission of the testimony of Williams.

Also, defendant's counsel in his cross-examination of Williams indicated that he had talked to Williams prior to the trial and that Williams had told him that he had seen defendant in the forest on either Saturday, December 19, or Sunday, December 20. Therefore, defendant cannot say that he was surprised by Williams' testimony at the trial.

Defendant next contends that the trial judge erred in refusing to grant defendant's motion for a new trial on the grounds of improper inflammatory argument by the solicitor. The proper course to pursue when an improper argument is made by counsel is for the opposing counsel to immediately object and have a record made of the alleged improper language and ask the court for a ruling [263 S.C. 29] on such language. Crocker v. Weathers, 240 S.C. 412, 126 S.E.2d 335 (1962).

Defendant admits that no objection was made to the solicitor's argument until defendant's...