State v. Weeks

• Decision Date: 29 November 1937
• Docket Number: 14575.
• Citation: 194 S.E. 12,185 S.C. 277
• Parties: STATE v. WEEKS et al.
• Court: South Carolina Supreme Court

194 S.E. 12

185 S.C. 277

STATE v. WEEKS et al.

No. 14575.

Supreme Court of South Carolina

November 29, 1937

Appeal from General Sessions Circuit Court of Dorchester County; A L. Gaston, Judge.

H. A Weeks and others were convicted of unlawfully and maliciously cutting, defacing, mutilating and injuring certain trees of value of $50, and named defendant appeals.

Reversed and remanded for entry of judgment for defendant.

L. D Lide, of Marion, T. B. Bryant, Jr., of Orangeburg, and Howard A. Jenkins, of Summerville, for appellant.

A. J. Hydrick, of Orangeburg, and J. D. Parler and M. S. Connor, both of St. George, for the State.

BAKER Justice.

The appellant, H. A. Weeks, and three others were tried at the April, 1937, term of the court of general sessions for Dorchester county, on an indictment on which the grand jury had returned a true bill at the April, 1935, term of court, charging that on April 19, 1933, they did willfully, unlawfully, and maliciously cut, deface, mutilate, and injure certain trees of the value of $50, of the proper goods and chattels of one Chapman-Storm Lumber Company, a corporation, to its damage in the sum of $50. The appellant, H. A. Weeks, was by a jury convicted, and by the court sentenced to the public works of Dorchester county, or a like period in the state penitentiary, for a period of three months, and pay a fine of $300.

From the judgment and sentence of the court, the appellant appeals upon eleven exceptions, which raise the questions: Did the trial judge err (a) in refusing a motion to direct a verdict of not guilty for that there was no evidence that the trees were the property of the prosecutor, Chapman-Storm Lumber Company, or that it was in the possession of the real property from which they were cut; (b) in refusing to direct a verdict of acquittal for that there was no evidence of malice in the cutting of the trees, even had there been any competent evidence that the appellant cut the trees; and (c) in refusing to continue the case?

Under our view of the case, it will be necessary to discuss but one question; Was there any evidence of malice on the part of the appellant? The writer hereof prolongs the question on account of the disclosures in the record of the atmosphere surrounding the prosecution of this case. Let it be said that we have not the slightest criticism of the honorable and learned attorneys representing the respondent.

Under a written contract between Minnesota-South Carolina Land & Timber Company, the owner in fee simple of the tract of land from which the trees in question were cut, and Chapman and Storm, who subsequently assigned their contract to Chapman-Storm Lumber Company, the nominal prosecutor at the time this case was tried, the first-named corporation agreed to sell and the last-named corporation agreed to purchase, as and when cut, all of the merchantable timber on various tracts of land, including the land from or on which these trees were cut. While there was a cessation of operations under this contract, an unprecedented woods fire swept this entire section of the country, and Minnesota-South Carolina Land & Timber Company, the owner of the timber, notwithstanding its contract with the prosecutor in this case, undertook to salvage damaged trees, and employed appellant to remove such trees as were on the ground. During these removal operations, Chapman-Storm Lumber Company commenced a civil action against Minnesota-South Carolina Land & Timber Company and attached its property within this state. Just prior to, or about the time the attachment was served, the nine trees out of which this prosecution had its origin, were cut, alleged to be green trees and undamaged, and appellant was engaged in hauling them, along with other trees to a sawmill.

When an agent came upon appellant engaged in loading these trees preparatory to hauling them to a sawmill, the appellant frankly admitted his purpose, admitted that the trees had been freshly cut, but denied all knowledge of who had cut them, and stated if there was going to be any trouble about his removing these or any other trees that were then on the ground, if it was going to involve him in a lawsuit, he would have nothing further to do with the removal thereof, and then and there desisted, although the agent of Chapman-Storm Lumber Company told appellant, "You need not stop because I just come over here to see what you are doing."

There is testimony that fire had been built on the top of the stumps from which these trees had been cut, and in the tree tops, but appellant denied any knowledge of who was responsible therefor. A witness for respondent testified that Ottie Green, one of the defendants, and an employee of appellant, told him that appellant "put the fire out." However, we are unable from the record to reach a conclusion if this statement by Green was made within the hearing of appellant; but giving him the benefit of the doubt, as we must do in a criminal prosecution, this was not testimony which can be considered against him.

There was no motion for a directed verdict of acquittal based on the failure of the evidence of the cutting of these trees by appellant, so we treat this case as though there were...