State v. Steadman, 16339.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtFISHBURNE, Justice.
Citation59 S.E.2d 168,216 S.C. 579
Docket Number16339.
Decision Date12 April 1950

59 S.E.2d 168

216 S.C. 579


No. 16339.

Supreme Court of South Carolina.

April 12, 1950

[59 S.E.2d 169] [Copyrighted Material Omitted] [59 S.E.2d 170] [Copyrighted Material Omitted] [59 S.E.2d 171]

[216 S.C. 582] C. T. Graydon, Columbia, for appellant.

[216 S.C. 584] Solicitor T. P. Taylor, Columbia, for respondent.


The defendant, Ida E. Steadman, was indicted in the Court of General Sessions for Richland County in December, 1947, charged with the violation of Sections 1112 and 1113 of the 1942 Code. Section 1112, upon which the first count is based, provides as follows: 'Any person who shall [216 S.C. 585] administer to any woman with child, or prescribe for any such woman, or suggest to or advise or procure her to take, any medicine, substance, drug or thing whatever, or who shall use or employ, or advise the use or employment of, any instrument or other means of force whatever, with intent thereby to cause or procure the miscarriage or abortion of premature labor of any such woman, unless the same shall have been necessary to preserve her life, or the life of such child, shall, in case the death of such child or of such woman results in whole or in part therefrom, be deemed guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment in the penitentiary for a term not more than twenty years not less than five years. But no conviction shall be had under the provisions of this section upon the uncorroborated evidence of such woman.'

Section 1113, upon which the second count of the indictment is based, reads as follows: 'Any person who shall administer to any woman with child, or prescribe or procure or provide for any such woman, or advise or procure any such woman to take any medicine, drug, substance or thing whatever, or shall use or employ or advise the use or employment of, any instrument or other means of force whatever, with intent thereby to cause or produce the miscarriage or abortion or premature labor of any such woman, shall, upon conviction thereof, be punished by imprisonment in the penitentiary for a term not more than five years, or by fine not more than five thousand dollars, or by such fine and imprisonment both, at the discretion of the court, but no conviction shall be had under the provisions of this section upon the uncorroborated evidence of such a woman.'

The defendant was tried under both counts of the indictment and found guilty on the first count,--that is, for producing an abortion upon the body of Irene Jones on September 16, 1947, and causing the death of the child with which she was found pregnant. The punishment was assessed by the Court at seven years in the penitentiary. Upon appeal being taken to this court, a decision was rendered November [216 S.C. 586] 22, 1948, reversing the judgment of the lower court and remanding the case for a new trial on the second count,--charging a violation of Section 1113. The appeal was sustained on the ground that the trial court should have directed a verdict of not guilty on the first count, Section 1112, on which the defendant was convicted, because there was no evidence of a separate and independent existence of a child. In other words, the woman was not quick with child. This decision, State v. Steadman, is reported in 214 S.C. 1, 51 S.E.2d 91.

The case was not called for trial a second time in the Richland County Court at the January and April Terms, 1949, but was heard at the May Term of that year, and resulted in a conviction on the second count of the indictment. A sentence of five years in the penitentiary was imposed, with a fine of $1,000. From this judgment and sentence, the defendant appealed upon various grounds which will [59 S.E.2d 172] now be considered. The numerous and important questions raised will in some measure account for the length of this opinion.

Appellant assigns error to the trial court because of its refusal to grant her motion for a continuance made on the ground that her physical condition was such that she could not safely go to trial. The motion was supported by a certificate of her physician to the effect that she was suffering from arthritis, with slight fever, and was in a highly nervous condition. He expressed the opinion that she was not able to go to trial.

Four doctors appointed by the Court made a physical examination of the accused, and under oath testified that she suffered from an old chronic arthritis in both knee joints, but they noted no swelling of any acute process. They expressed the definite opinion that it would not endanger her life or injure her health to stand trial. They also stated that she was capable of consulting with her attorney and advising with him during the trial; that she could reach the court house without much assistance, and during the trial could [216 S.C. 587] be made confortable in a rolling type chair, or even in an ordinary chair with a cushion in it.

It is a well established rule in this jurisdiction that the trial court's ruling in granting or refusing to grant a motion for a continuance in a criminal case will not be disturbed in the absence of a clear and conclusive showing of abuse of discretion, with resulting prejudice to the appellant. State v. Cook, 204 S.C. 295, 28 S.E.2d 842; State v. McDonald, 184 S.C. 290, 192 S.E. 365; State v. Franics, 152 S.C. 17, 149 S.E. 348, 70 A.L.R. 1133; State v. Lee, 58 S.C. 335, 36 S.E. 706.

The record shows that appellant was present throughout her trial, and apparently without ill effect. And we are satisfied that no prejudice resulted to her by reason of the adverse ruling of the court. The exception raising this question is overruled.

It is charged that the trial court erred in presenting the juror W. S. Wooten after he had been examined on his voir dire, on the ground that his examination showed that he had formed and expressed an opinion, and was not a fair and impartial juror.

When examined on his voir dire, the juror Wooten said that he had heard the Steadman case discussed, had read newspaper accounts concerning it, and had formed or expressed an opinion with reference to the guilt or innocence of the accused. He unqualifiedly stated, however, that he could render an impartial verdict based solely on the evidence and the law without being influenced by what he had read or heard discussed.

We think there was no abuse of discretion in the ruling of the court that the juror should be presented. He reiterated under oath, on examination of the court and by counsel for defense, that in reaching a verdict he would be free from bias, prejudice, or fixed opinion, and would be guided by the law and the evidence. State v. Middleton, 207 S.C. 478, 36 S.E.2d 742; State v. McDonald, 184 S.C. 290, 192 [216 S.C. 588] S.E. 365; State v. Mittle, 120 S.C. 526, 113 S.E. 335; State v. Milam, 65 S.C. 321, 43 S.E. 677.

The rationale of the doctrine upon which the foregoing cases are based, is well expressed in 50 C.J.S., Juries, § 232-a, page 980: 'Formerly when jurors who had not heard of a case or formed any opinion regarding it were easier to procure the rule was more strict. Now, however, it is generally held that the right to a trial before a fair and impartial jury does not mean that one is entitled to be tried by jurors who have never heard or read of the case or formed a passing opinion thereon. In these times, if that were the rule, it would make it extremely difficult to procure an intelligent jury in cases of any prominence, and it might be that no man of ordinary intelligence would be qualified to sit as a juror. It would tend to place the administration of justice in the hands of the most ignorant and least discriminating portion of the community.'

We are asked to discharge the defendant on the ground that she has been once [59 S.E.2d 173] in jeopardy, and cannot, therefore, be tried again. This question is a serious one and we have considered it with care. The defendant contends that the trial court placed the accused in double jeopardy by refusing to quash the indictment. It will be recalled that the indictment contains two counts, charging distinct and separate offenses. The first count as already stated, is based upon Section 1112, which provides punishment for producing a miscarriage, resulting in the death of a child. On appeal, State v. Steadman, 214 S.C. 1, 51 S.E.2d 91, the judgment and sentence was set aside because there was not sufficient evidence to support the conviction; and the case was remanded for a new trial on the second court of the indictment. This second count charged that the defendant by the use of an instrument produced an abortion on the body of Irene Jones.

In the former trial, the jury found the defendant guilty on the first count, but was silent as to the second count.

[216 S.C. 589] That no person shall be twice put in jeopardy for the same offense is a common law principle which we believe is incorporated in the Constitution of each of the states which compose the United States. In these words it is incorporated in our Constitution: Art. I, Sec. 17: '* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or liberty * * *.' This provision, however, has not been uniformly interpreted and applied in all jurisdictions. State v. Gillis, 73 S.C. 318, 53 S.E. 487, 5 L.R.A., N.S., 571, 114 Am.St.Rep. 95, 6 Ann.Cas. 993. The common law rule and the Constitutional provisions declaratory thereof against the second jeopardy, apply in this jurisdiction only to a second prosecution for the same act and crime, both in law and fact for which the first prosecution was instituted. When a single act combines the requisite ingredients of two distinct offenses, the defendant may be severally indicted and punished for each. State v. Switzer, 65 S.C. 187, 43 S.E. 513; State v. Taylor, 2 Bailey 49; State v. Thurston, 2 McMul. 382. The test generally...

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