State v. Thompkins, 16577

• Citation: 68 S.E.2d 465,220 S.C. 523
• Decision Date: 31 December 1951
• Docket Number: No. 16577,16577
• Parties: STATE v. THOMPKINS et al.
• Court: United States State Supreme Court of South Carolina

Page 465

68 S.E.2d 465

220 S.C. 523

STATE v. THOMPKINS et al.

No. 16577.

Supreme Court of South Carolina.

Dec. 31, 1951.

J. Shepherd Thompson, Georgetown, for appellants.

J. Reuben Long, Sol., Conway, for respondent.

OXNER, Justice.

Appellants Bright Thompkins and Albert Thompkins, brothers, were jointly indicted for assault and battery with intent to kill and unlawfully pointing a firearm. The jury found Albert guilty of assault and battery with intent to kill and Bright of unlawfully pointing a firearm. The trial Judge imposed a sentence of eighteen months upon Albert and six months upon Bright. Both have appealed from an order refusing a motion for a new trial upon the ground that the evidence was insufficient to sustain the verdicts.

The indictment contained two counts. In the first count appellants were charged with assaulting, cutting and wounding one J. C. Skinner with a knife on December 24, 1947, and in the second count with unlawfully pointing a firearm at Skinner. They were not represented by counsel at the trial.

The prosecuting witness, Skinner, and appellants, all White men, live in the same community in Georgetown County. The testimony for the State was substantially to the following effect: About dusk on December 24, 1947, the parties met near or just outside a Negro country store. An argument immediately developed. Albert cursed Skinner, who then went into the store. Bright followed and without any legal provocation or excuse cut Skinner in the back with a knife. Albert came in with a shotgun and in a threatening manner pointed it at Skinner. A bystander knocked the gun up. When he did so, it went off and the load hit the ceiling. Skinner and the other witnesses for the State testified positively that it was Bright who had the knife and did the cutting and Albert who had the gun.

Appellants were the only witnesses for the defense. They testified that the difficulty started when Skinner opened his knife, started cursing, and sicked a dog on Albert, and that Bright then went to the car, got a shotgun, and came in the store where the gun was wrested from him by five or six Negroes. They said that Bright got the gun to frighten the Negroes, several of whom had knives, and stop the row. Albert admitted that he 'knocked Joe Skinner on the head a couple of times, enough to break my fist', but denied that either he or his brother cut him. Bright said that he was hit several times by the Negroes when they were seeking to seize the gun. According to appellants, Skinner was drunk.

The testimony of the State in reply was to the effect that no one had a knife in the store except Bright Thompkins who did the cutting.

The contention that the verdicts are not supported by the evidence is based on the fact that although all of the testimony for the State showed it was Albert who pointed the gun at Skinner and Bright who did the cutting, the jury convicted Albert of assault and battery with intent to kill and Bright of unlawfully pointing the gun.

There was no motion by appellants during the trial for a directed verdict as to either count in the indictment. Under Circuit Court Rule 76, the point that there was no evidence to support a count in the indictment should have been raised by a motion for a directed verdict. However, in a number of criminal cases we have waived compliance with the Rule. State v. Bowman, 137 S.C. 364, 135 S.E. 360; State v. Ray, 147 S.C. 329, 145 S.E. 192; State v. O'Shields, 163 S.C. 408, 161 S.E. 692; State v. Blackwell, S.C., 67 S.E.2d 684. Under the circumstances of this case, we think it proper to waive appellants' failure to move for a directed verdict as to any count in the indictment claimed to be unsupported by the evidence, and we shall consider the question on the merits.

It must be conceded that the verdicts are not entirely consistent with the State's testimony, but in determining the sufficiency of the evidence to support the verdicts, we must consider the entire testimony, including that offered by appellants. Spangler v. Commonwealth, 188 Va. 436, 50 S.E.2d 265; Annotation 17 A.L.R. 910; 53 Am.Jur., Trial, Sections 425 and 426; 23 C.J.S., Criminal Law, § 1148. As stated in Commonwealth v. George, 42 Pa.Co.Ct.R. 643: 'We know of no reason why the defendant in a criminal court, who is not content to leave the commonwealth's case where he finds it, should escape a just conviction simply because he has, unfortunately for himself, completed the proof of his own guilt.'

We think the evidence clearly sustains the conviction of appellant Albert Thompkins on the count charging assault and battery with intent to kill. It seems to be undisputed that someone cut Skinner in the back with a knife and it may be reasonably inferred from the testimony that this was done by one of the appellants. Assuming, as testified by the witnesses for the State, the Bright Thompkins had the knife and did the cutting, there is ample evidence reasonably warranting the conclusion that Albert Thompkins was acting in concert with him and was present aiding and abetting in the commission of this offense. In State v. Gilbert, 107 S.C. 443, 93 S.E. 125, the Court said: 'It is the law that in crimes or misdemeanors...