State v. Puckett, 17722

• Decision Date: 07 December 1960
• Docket Number: No. 17722,17722
• Citation: 237 S.C. 369,117 S.E.2d 369
• Court: South Carolina Supreme Court
• Parties: STATE, Respondent, v. Gentry PUCKETT, John W. Burgess and Don Wheeler, Appellants.

Page 369

117 S.E.2d 369

237 S.C. 369

STATE, Respondent, v. Gentry PUCKETT, John W. Burgess and Don Wheeler, Appellants.

No. 17722.

Supreme Court of South Carolina.

Dec. 7, 1960.

J. Nat Hamrick, Rutherfordton, J. Shepherd Thompson, Georgetown, for appellants.

R. Kirk McLeod, Sol., Sumter, for respondent.

MOSS, Justice.

At a Court of General Sessions held in Sumter, South Carolina, in May 1959 Gentry Puckett, John W. Burgess and Don Wheeler, the appellants herein, along with Jimmy Lane and Floyd E. Trantham, were indicted for (1) conspiracy to break and enter the Piggly Wiggly Store owned by one Red Baker, with intent to steal therefrom, in violation of Section 16-550, as appears in the cumulative supplement to the 1952 Code; (2) attempting to enter the store house aforesaid with intent to steal and carry away the goods of the owner thereof, in violation of Section 16-361 of the 1952 Code of Laws of South Carolina; and (3) for the possession of certain named tools or other implements or things adapted or commonly used for the commission of burglary, larceny, safe cracking, or other crime, under circumstances evincing an intent to use or employer, or allow the same to be used or employed in the commission of a crime, or knowing that the same were intended to be so used, in violation of Section 16-302 of the 1952 Code of Laws of South Carolina. At the close of the testimony of the State, a directed verdict was granted as to the appellant, Gentry Puckett, on Count 2 of the aforesaid indictment. All of the appellants, along with the defendant Jimmy Lane, interposed motions for a directed verdict of not guilty on all counts of the indictment at the close of the State's testimony, and again at the close of the testimony in behalf of the appellants and Jimmy Lane. All of these motions were refused, with the exception above stated. The case was submitted to the jury and a verdict of guilty was returned. A motion was then made on behalf of the appellants for the direction of a verdict non obstante veredicto. This motion was refused and the appellants, along with Jimmy Lane, were duly sentenced. Timely notice of intention to appeal to this Court was given by the appellants hereinbefore named. The ten exceptions filed by the appellants raise only two questions. By the first nine exceptions, the appellants contend that the evidence is insufficient to support the verdict rendered by the jury, and that the trial Judge should have directed a verdict in their favor or granted judgment non obstante veredicto. The other question is whether the trial Judge committed error in the admission of certain evidence.

Section 16-550 of the 1959 cumulative supplement to the 1952 Code of Laws, defines a conspiracy as follows: 'The crime known to the common law as conspiracy is hereby defined as a combination between two or more persons for the purpose of accomplishing a criminal or unlawful object, or an object neither criminal nor unlawful by criminal or unlawful means.' The foregoing statute defining conspiracy confirms a definition thereof as is contained in State v. Ameker, 73 S.C. 330, 53 S.E. 484; State v. Davis, 88 S.C. 229, 70 S.E. 811, 34 L.R.A.,N.S., 295; and State v. Hightower, 221 S.C. 91, 69 S.E.2d 363, 369. In the last cited case, as to the proof of conspiracy, this Court said:

'The generally recognized rule is that the fact of a conspiracy may be proved by any relevant competent evidence, having a legitimate tendency to support the accusation. The conspiracy may be shown, of course, not only by direct evidence, but by circumstantial evidence, or by both. And in a case of this kind, in the reception of circumstantial evidence, great latitude must be allowed. State v. Shipman, 202 N.C. 518, 163 S.E. 657; 15 C.J.S., Conspiracy, § 92b, p. 1141. Here, we have not only circumstantial evidence, but direct evidence going to prove appellant's guilt.

'Conspiracies may and generally must be proved by a number of indefinite circumstances which vary according to the objects to be accomplished. Any circumstance or act standing alone might have little weight, but, taken collectively, they point unerringly to the existence of the conspiracy. Bloomer v. State, 48 Md. 521. And as stated by the Court in State v. Anderson, 208 N.C. 771, 182 S.E. 643, 652: 'When resorted to by adroit and crafty persons, the presence of a common design often becomes exceedingly difficult to detect. Indeed, the more skillful and cunning the accused, the less plainly defined are the badges which usually denote their real purpose.' And see Annotation, Vol. 3 Am.St.Rep., Page 482.'

The appellants John W. Burgess and Don Wheeler were convicted of a violation of Section 16-361 of the 1952 Code of Laws of South Carolina, which provides: 'Any person who shall enter, without breaking, or attempt to enter any house * * * with intent to steal or commit any other crime * * * shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished in the discretion of the court.'

The third count of the indictment charges the appellants with a violation of Section 16-302 of the 1952 Code of Laws, which provides that, 'A person who * * * has in his possession in the day or nighttime any engine, machine, tool, false-key, pick-lock, bit, nippers, nitroglycerine, dynamite-cap, coil or fuse, steel wedge, drills, tap-pin or other implement or thing adapted, designed or commonly used for the commission of burglary, larceny, safe creacking 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 shall, upon conviction, be guilty of a misdemeanor. In either case he shall, upon conviction, be punished at the discretion of the court.' This statute was before this Court in the cases of State v. Pulley, 216 S.C. 552, 59 S.E.2d 155, and State v. Nicholson, 221 S.C. 472, 71 S.E.2d 306. In these cases this Court held that the fact that a particular tool may be, and frequently is, put to a lawful use, is not conclusive that it may not have been, in a given case, intended to be used in the commission of crime, such as burglary, larceny and safe cracking. In State v. Pulley, supra, it was held that the possession of articles suitable for breaking and entering may constitute an offense under Section 16-302 of the Code, though they were not originally designed for a burglarious purpose. 12 C.J.S. Burglary § 69, page 753. The statute, Section 16-302, provides that if such tools are in the possession of one, under circumstances evincing an intent to use or employ or allow the same to be used or employed in the commission of a crime, then the possessor of such tools is guilty.

Where there is a motion for a directed verdict or judgment non obstante veredicto on the ground of the insufficiency of the evidence to require the submission of the case to the jury, we are bound by the rule as stated in the case of State v. Nicholson et al., 221 S.C. 399, 70 S.E.2d 632, 633, where we said:

'* * * on an appeal from the refusal of the Court to direct a verdict of not guilty, or grant a motion for a new trial in a criminal case, the evidence and the inferences which may reasonably be drawn therefrom, must be viewed in the light most favorable to the State. It is unnecessary to cite authority for this postulate.' See also State v. Littlejohn, 228 S.C. 324, 89 S.E.2d 924, and State v. Epes, 209 S.C. 246, 39 S.E.2d 769.

It is the contention of the appellants that the entire testimony of the State is based on circumstantial evidence and did not meet the test required by law since even if the jury believed each circumstance offered, the same did not point to the guilt of the appellants nor was such consistent with their guilt and inconsistent with their innocence. In State v. Littlejohn, supra, the rule as to circumstantial evidence is thus stated:

'* * * It must be remembered, too, that there is one test by which circumstantial evidence is to be measured by the jury in its deliberations, and quite another by which it is to be measured by the trial judge in his consideration of the accused's motion for a directed verdict. As to the former, it is necessary that every circumstance relied upon by the state be proven beyond a reasonable doubt; and that all of the circumstances so proven be consistent with each other and, taken together, point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis. It is not sufficient that they create a probability, though a strong one; and if, assuming them to be true, they may be accounted for upon any reasonable hypothesis which does not include the guilt of the accused, the proof has failed. State v. Kimbrell, 191 S.C. 238, 4 S.E.2d 121. So the trial judge charged, in substance, in the instant case, concluding with the following: 'In other words, in the consideration of circumstantial evidence, the jury must seek some explanation thereof other than the guilt of the accused, and, if such reasonable explanation can be found, the jury cannot convict on such evidence.' Such test goes to the weight of the evidence, and is therefore to be applied by the jury in their consideration of it. State v. Roddey, 126 S.C. 499, 120 S.E. 359. But on a motion for direction of verdict, 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 raises a suspicion that the accused is guilty, it is his duty to submit the case to the jury if there be any substantial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly and logically deduced. State v. Brown, 205 S.C. 514, 32 S.E.2d 825.' [228 S.C. 324, 89 S.E.2d 926]

It is contended that the trial Judge erred in refusing a motion by the appellants for a directed verdict made when ...