State v. Squires

• Decision Date: 01 August 1966
• Docket Number: No. 18545,18545
• Citation: 248 S.C. 239,149 S.E.2d 601
• Parties: The STATE, Respondent, v. David SQUIRES, Allen K. Squires, and Charles Stewart, Appellants.
• Court: South Carolina Supreme Court

Page 601

149 S.E.2d 601

248 S.C. 239

The STATE, Respondent, v. David SQUIRES, Allen K. Squires, and Charles Stewart, Appellants.

No. 18545.

Supreme Court of South Carolina.

Aug. 1, 1966.

Edward E. Saleeby, James M. Herring, Billy R. Craig, Hartsville, for appellants.

Solicitor Marion H. Kinon, Dillon, Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Ben T. DeBerry, Columbia, for respondent.

BUSSEY, Justice.

On the night of March 27, 1959, three men, one of them armed with a pistol, burglarized the home of Mr. and Mrs. G. G. Harris at Lamar, South Carolina, robbed them, and forced Mr. Harris to deliver the keys to his store and combination to the safe therein which two of the men looted while the third stood guard over Mr. and Mrs. Harris. According to the evidence for the State, those three men were the appellants in this case, David Squires, Charles Stewart and Allen Squires. The appellants were apprehended, confessed to their participation in the foregoing crimes and were indicted, charged with burglary, armed robbery, housebreaking and larceny. At the June 1959 term of the Court of General Sessions for Darlington County, they all pled guilty to burglary and a jury was impaneled for the purpose of recommending mercy, following which they were each sentenced to twenty-one years in the State Penitentiary. At the same term of court, Henry Squires, father of David and Allen Squires, pled guilty as an accessory, both before and after the fact, to the aforesaid crimes, was sentenced therefor, has completed serving his time, and is no longer a party in the case. Subsequent to his plea of guilty, the appellant David Squires made a rather full statement to the judge, admitting his guilt and asking for mercy.

On July 24, 1963, the three appellants filed a petition for a writ of habeas corpus with the resident judge of the Fifth Judicial Circuit, alleging that their sentences were void and that their detention and restraint were unlawful and unconstitutional on the basic ground that they were without benefit of counsel when they entered their pleas of guilty. On the hearing on the said petition, the State did not oppose a new trial, which was the only relief to which appellants were entitled, and which relief the hearing judge granted, ordering the authorities at the penitentiary to deliver the appellants into the custody of the sheriff of Darlington County for the purpose of standing a new trial, with their right to counsel protected, said order being dated August 22, 1963.

The appellants were represented by court appointed counsel on the hearing on their petition, and, prior to the next term of court for Darlington County, present counsel for appellants were appointed by the court, they being notified in writing of such appointment on October 30, 1963. When court opened on the morning of November 4, 1963, counsel moved for a continuance, which motion was then denied and the case set for trial on Thursday, November 7th. When reached on that date, counsel did not renew the motion for a continuance but stated that the defendants were ready, all of whom pled not guilty.

The jury returned a verdict of guilty on all counts as to appellants David Squires and Charles Stewart, with a recommendation of mercy, but convicted appellant Allen Squires only of housebreaking and larceny, and also recommended him to mercy. Stewart and David Squires were sentenced to twenty-five years each, and Allen Squires to fifteen years. They all appeal.

It might not be amiss to point out that the State's evidence warranted a conviction of Allen Squires on all counts, and the fact that the jury did not so convict him is possibly explained by the fact that he did not actually enter the Harris home simultaneously with the other appellants. He came in some minutes later and stood guard while the other two went to the store.

The appellants' exceptions raise a number of questions. We first consider whether there was, as contended, any error on the part of the trial judge in denying the motion for a continuance. It is well settled in this jurisdiction, as well as in most others, that the trial court's refusal of a motion for continuance in a criminal case will not be disturbed in the absence of a clear and conclusive abuse of discretion. See State v. McDonald, 184 S.C. 290, 192 S.E. 365, and cases therein cited. We see nothing in the instant case to indicate any abuse of discretion on the part of the trial judge in denying the motion. A new trial was ordered as a result of appellants' petition for a writ of habeas corpus, and the case was already over four years old. Mr. Harris had since died, and Mrs. Harris, the only living person who could and did identify the appellants, was, at the time of the new trial, 74 years of age. There is no showing that any other evidence on behalf of the appellants could have been produced, or that any other points in their behalf could have been raised had more time been granted for the purpose of preparing the case for trial. The motion for continuance was made at the opening of court on Monday, and denied. If, between that date and Thursday, when the trial actually commenced, anything developed in the course of trial preparation which would indicate that the appellants would actually be prejudiced as a result of denying the motion for continuance, such motion should have been renewed at the commencement of the trial, and the matters brought to the attention of the judge. Counsel, however, announced on Thursday that the defendants were ready.

One exception asserts that the trial judge erred in allowing the original indictment of June 1959 to go to the jury, the error being that defendants were never re-indicted, there is no merit in this exception. State v. Stephens, 13 S.C. 285. We think it not amiss, however, to point out that the trial judge here exerted every effort to avoid any possible prejudice to the appellants in the use of the old indictment with their pleas of guilty thereon. Prior to the commencement of the trial, the jury was excluded from the court room while all preliminary motions were considered, and at that time it was stipulated that only a copy of the original indictment would be submitted to the jury. In the course of the trial the appellant, David Squires, testified on direct examination as to his plea of guilty in June 1959. In view of this development, at the conclusion of the trial, counsel for appellants, not waiving the contention that appellants should have been re-indicted, consented that the original indictment should be sent to the jury, under appropriate instructions from the trial judge that the jury was to give no effect, or consideration, to the pleas of appellants entered thereon.

The direct testimony of David Squires as to his prior plea of guilty gave rise to several other questions. He explained his plea of guilty and, at least inferentially, the pleas of the other appellants, by testifying that he, David, was told by the solicitor that the solicitor would see to it that they got life imprisonment if they did not plead, and that his father, Henry Squires, would get ten years as an accessory. According to his testimony, the sheriff and possibly one other person were present when the solicitor allegedly made such statements. The solicitor did not take the stand, but called in reply to this testimony the sheriff and deputy sheriff, both of whom testified that they were present when the solicitor, at the request of David, talked with him, and that the statements which David attributed to the solicitor were not made.

In the course of the solicitor's argument to the jury, and with reference to the statements allegedly made by the solicitor to David Squires, he said.

'* * * if you believe I told them that, I hope you will turn them loose.'

Objection to the foregoing language was made and overruled. Appellants assert that the quoted language allowed the solicitor, who was not a witness, to place his personal reputation for veracity against that of David Squires. We think there is no merit in this contention.

Whether or not the language used by counsel in argument is prejudicial depends, at least to some extent, on the context in which the language is used, the manner, tone of voice, and bearing of counsel. The record here does not show the exact context in which the language objected to was used. The trial judge heard the entire argument, knew the context in which the words were uttered, and the demeanor of the solicitor in uttering the same. David Squires' veracity as to the statements which he attributed to the solicitor was put in issue by the conflicting testimony of the two officers who were present. The trial judge, who was in position to know and observe all of the circumstances, in the exercise of his discretion, concluded that the solicitor's argument was not improper or prejudicial, and overruled the objection.

As was said in the case of State v. Robertson, 26 S.C. 117, 1 S.E. 443.

'It is often (a) matter of difficulty to draw the line sharply between legitimate argument and unauthorized statement,--between what is and what is not allowable; and, as this pertains to the conduct of the cause, it must, to a large extent, be left to the...