State v. Pitts, 19258

• Decision Date: 27 July 1971
• Docket Number: No. 19258,19258
• Citation: 256 S.C. 420,182 S.E.2d 738
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Robert James PITTS, Appellant.

Page 738

182 S.E.2d 738

256 S.C. 420

The STATE, Respondent, v. Robert James PITTS, Appellant.

No. 19258.

Supreme Court of South Carolina.

July 27, 1971.

Charles H. Chiles, and James T. Irvin, Jr., Rock Hill, for appellant.

Atty. Gen., Daniel R. McLeod, and Asst. Atty. Gen. Joel E. Gottlieb, Columbia, and Solicitor Mike S. Jolly, Union, for respondent.

MOSS, Chief Justice:

Robert James Pitts, the appellant herein, along with Roy Albert Hinson and Clifford Jackson Hicks were indicted by the Grand Jury of York County at the 1970 February Term of Court of General Sessions, charging them in three separate indictments with the crimes of murder, armed robbery and burglary. Hinson entered a plea of guilty to armed robbery and was sentenced to serve a term of eighteen years. The record does not reveal what disposition was made of the Hicks case. At the 1970 April term of Court of General Sessions on motion of the appellant the separate charges against him were consolidated for trial. At the close of all of the testimony the appellant made a motion for a directed verdict. This motion was refused and the case submitted to the jury and verdicts of guilty of murder with recommendation to the mercy of the court, of burglary and of armed robbery were returned. Prior to sentence, the appellant moved for a verdict of not guilty Non obstante veredicto, or in the alternative for a new trial. All motions made by the appellant were overruled by the trial judge and this appeal followed.

The appellant asserts that the trial judge committed reversible error in refusing his motion to disqualify a juror upon the ground that she failed to disclose material facts on her Voir dire examination.

It appears that the trial judge, pursuant to Sec. 38--202 of the Code, at the request of the appellant, propounded to each juror the question 'Are you related by blood or marriage to any law officers connected with this case?' The juror, Ann Ervin, answered this question in the negative. Prior to the presentation of any evidence, but after the jury had been sworn, it was discovered that a brother-in-law of the juror was a deputy sheriff of York County. The appellant made a motion to disqualify Ann Ervin as a juror because of this relationship. The trial judge, out of the presence of the jury, conducted an examination of this deputy sheriff and the sheriff of York County. The examination of the sheriff revealed this deputy was not connected with the case against the appellant in any manner. The deputy sheriff testified that he did not know his sister-in-law was a member of the jury panel until he came into court on the day of the trial. He further stated that in the investigation and all that he knew about it was what he had read in the newspaper.

The trial judge found that the deputy sheriff was not connected with this case and hence the juror had answered the Voir dire question truthfully. He further held that the fact that the juror was related by marriage to a deputy sheriff not involved in this case furnished no basis for disqualifying the juror. We agree with the conclusion reached by the trial judge. See State v. Cook, 204 S.C. 295, 28 S.E.2d 842.

It is the position of the appellant that the trial judge was in error in refusing to direct a verdict of not guilty because the sole evidence of his guilt was the uncorroborated testimony of Roy Albert Hinson, an accomplice and co-defendant, whose testimony was contradicted by Mrs Boyd and the attending physician of Mr. Boyd.

Roy Albert Hinson, who testified on behalf of the State, recited that he along with the appellant and Clifford Jackson Hicks departed from Charlotte, North Carolina during the evening of May 11, 1969 for the express purpose of burglarizing the home of Woodrow C. Boyd, such home being located in a rural section of York County approximately five miles South of the City of York, South Carolina. Hinson related that when they arrived at the Boyd home, which at the time was unoccupied, they immediately began making efforts to break in and had removed a window screen to this end. He stated that during the course of this break in, Boyd and his wife unexpectedly returned to the home. Hinson went on to testify that when the car entered the driveway he ran away from the house, only to become entangled in a barbed wire fence located at the rear of the Boyd lot. He said that while he was attempting to free himself from the fence he heard several pistol shots sounding as if they had come from the vicinity where Boyd had stopped his automobile, and upon freeing himself he proceeded to where he thought the pistol had been discharged. This witness stated that upon reaching the automobile he found the appellant with a pistol in his hand and saw that Boyd had been shot. He stated that he along with the appellant carried Boyd into the house and left him in the kitchen with Mrs. Boyd. Hinson further testified that the three of them, after Boyd was shot, robbed the bedroom of certain monies, took Boyd's billfold and several hundred dollars from the trunk of the automobile. At the time of the shooting of Boyd and the robbery of his home, Hinson said he was wearing a stocking over his face and the other two were wearing ski masks. Hinson further testified that he did not see the actual shooting of Boyd but on the way back to Charlotte Pitts admitted that he had shot Boyd because Boyd resisted the robbery. Hinson also testified that on the day following the robbery the money taken from Boyd was divided between the three of them. The record shows that Woodrow Boyd died in the York General Hospital on May 17, 1969 as a result of the pistol wounds he had received.

The attending physician testified that Boyd described the man who shot him as being young and light skinned. Mrs. Boyd positively identified Hinson as one of the participants in the robbery and described the other two men who wore ski masks as short and thin. The record shows that the appellant was 56 years of age, six feet tall, weight approximately 205 pounds and had a generally ruddy complexion.

The appellant contends that the testimony of the attending physician and that of Mrs. Boyd did not identify him as to his physical appearance or characteristics and thus serves to contradict and impeach the testimony given by Hinson.

We have held in a number of cases that the weight to be given to a testimony of an accomplice is for the fact finding body and if the uncorroborated evidence satisfies the jury of the defendant's guilt beyond a reasonable doubt, a conviction is warranted. State v. Harvey, 253 S.C. 328, 170 S.E.2d 657. The weight to be attached to the testimony of an accomplice is for the jury alone who must consider it in view of the other evidence and reach their conclusion on the view of the whole case.

It is elementary in considering whether the trial judge erred in not directing a verdict of acquittal in favor of the appellant that we must view the testimony in the light most favorable to the State. When a motion for directed verdict of acquittal is made, the trial judge is concerned with the existence or non-existence of evidence, not with its weight, and although he should not refuse to grant the motion where the evidence merely arises a suspicion that the accused is guilty, it is his duty to submit the case to the jury if there is any evidence, direct or circumstantial, which reasonably tends to prove the guilt of the accused or from which his guilt may be fairly and logically deduced. State v. Fleming, 254 S.C. 415, 175 S.E.2d 624. A motion for a directed verdict of acquittal is properly refused where the determination of guilt is dependent upon the credibility of a witness, as...