State v. Wells

Citation153 S.E.2d 904,249 S.C. 249
Decision Date28 March 1967
Docket NumberNo. 18624,18624
CourtUnited States State Supreme Court of South Carolina
PartiesThe STATE, Respondent, v. Launey C. WELLS and Waldo Jones, Appellants.

Pritchard, Myers & Morrison, Charleston, Jack H. Page, Conway, for appellants.

Solicitor Arthur G. Howe, Charleston, for respondent.

BUSSEY, Justice.

Appellants Wells and Jones were indicted, convicted and sentenced in General Sessions Court of Charleston County for the crime of conspiracy to commit abortion. There are several grounds of appeal, of which some are urged by both appellants, while others are asserted by the appellants separately. They both contend that they were entitled to directed verdicts of not guilty for insufficiency of evidence, which contention will be dealt with first.

In passing upon this question, it is well settled that the evidence, and inferences which reasonably can be drawn therefrom must be viewed in its most favorable light for the State. See cases collected under West's South Carolina Digest, Criminal Law, k753(2). It is not the function of the court to pass upon the weight of the evidence, but to determine its sufficiency to support the verdict, and where there is any evidence, however slight, on which the jury may justifiably find the existence or nonexistence of the material facts in issue, or if the evidence is of such character that different conclusions as to such facts reasonably may be drawn therefrom, the issues will be submitted to the jury, see cases collected in West's South Carolina Digest, Criminal Law, k741(1).

We, accordingly, proceed to state and review the evidence and the inferences reasonably drawn therefrom, in the light of the applicable principles of law. Both Wells and Jones were practicing naturopaths in this state, when the practice of naturopathy was outlawed in the year 1956. They had known each other since some time in the 1920's when Wells was a student at the National University of Physicians and Surgeons, Therapeutics, Washington, D.C., where Jones was for a time one of Wells' instructors. According to their testimony, they had no contact thereafter with each other until about 1944, when Wells was taking the board examination in South Carolina. According to them, they were not again in contact until 1956, when they both participated in the effort to defeat the legislation which outlawed the practice of naturopathy in this state. Testimony on their behalf is to the effect that after 1956 they had no contact with each other until the time of the trial in the instant case.

Jones practiced in Horry County until 1956, and in the year 1964 was living at Garden City near Myrtle Beach in Horry County. The record fails to disclose what occupation, if any, he followed from 1956 to 1964.

Wells practiced in Charleston County where he, with the assistance of his wife, was operating a clinic in 1956. When the practice of naturopathy was prohibited, Wells and his wife secured the services of a Dr. Behling, who is a medical doctor, in the operation of the clinic, where Wells continued to work, ostensibly as an assistant to Dr. Behling, Wells being so engaged in the summer of 1964.

On July 16, 1964, one Carol Franklin, a 23 year old unmarried woman, suspecting that she was pregnant, consulted one of the leading physicians in the City of Charleston who confirmed her suspicion and concluded that she was then approximately four months pregnant. In her dilemma, Carol confided in and consulted with one Maxie Ellisor, the operator of a bingo game on the Isle of Palms, where Carol resided. Ellisor had been acquainted with Wells for some five or six years, and had for a time operated a bingo game at Myrtle Beach. Ellisor and Jones both deny that they knew each other. In any event, Ellisor directed Carol to Wells, whose assistance Carol sought to effect an abortion. Upon her first contact with Wells, he wanted to know who had sent her, and ascertained that Ellisor had done so.

Wells, inferentially because he first wanted to check with Ellisor, told her to either call back or come back on the following Friday. She returned on the following Friday and, after examination and some discussion, Wells assured her that a miscarriage could be accomplished by a series of shots, the cost of which would be $50. The series of shots prescribed by Wells was administered by one or the other of two nurses who worked for Wells. In addition, on Wells' prescription, she took castor oil at home. On or about August 26, 1964, Wells informed Carol, following a fluoroscopic examination, that the baby had dropped to one quarter of an inch from where it would come out and for her to come back on Friday, August 28, and if the baby was still in that position, he would give her a shot of PIT (PIT is the abbreviation for Pitocin, a prescription drug which causes the uterus to contract. Among other things, it is administered to cause a miscarriage). On the 28th, she returned to obtain the shot of PIT, but after another fluoroscopic examination she was advised by Wells that the baby 'had gone back up too far', and that the shot would not help. He also told Carol there was nothing further he could do, and refunded to her $20 which she had paid on account. Carol then asked Wells if he knew of anyone who could perform the abortion, and he told her that he knew of a doctor, but did not know if he was still working 'in that field', and for Carol to call him back that night at 6 o'clock.

In accordance therewith, Carol did make the call, and was informed that the doctor's name was Jones at Myrtle Beach. She was further told by Wells to contact their mutual friend, Ellisor, for specific directions to Jones' house and as to the price Jones would charge her for an abortion. In accordance with this advice from Wells, she contacted Ellisor and got specific information from him. The price given her was $150, which amount she borrowed from a finance company.

On the next Monday afternoon, August 31, following the directions given her by Ellisor, she went to the home of Jones at Garden City, who met her in the yard of his residence and was expecting her. Jones directed her to proceed to a designated apartment at a motel some miles north of Myrtle Beach where Jones promptly met her, and proceeded to open her cervix with an instrument. He advised her that she would abort the following day, and sent her back to her home at the Isle of Palms.

Her water ruptured on the following day, but she did not abort, and on Wednesday night she started hemorrhaging rather severly. She did not immediately seek medical attention, but on Friday telephoned the clinic with which Wells was connected and was advised by either Wells or one of his nurses not to worry that everything would be all right. By Friday night her condition was such that she had to seek attention at the Medical College Hospital, where it became evident that an abortion had been attempted upon her and that infection had set in. With medical assistance, the baby was delivered that night, but lived only several minutes.

There was no direct evidence to prove any meeting, communication or agreement between Wells and Jones. Appellants urge that the circumstantial evidence is insufficient to establish a conspiracy between them, but concede that their conviction is not totally dependent upon proof of a conspiracy between those two, because if a conspiracy existed between one of the appellants and a co-conspirator, the other appellant could well have joined the conspiracy without having any direct agreement or dealing with the appellant as to whom the conspiracy was already in existence. They argue, however, that there could have been no conspiracy between Wells and Carol Franklin, and, hence, there was no conspiracy which Jones could have joined.

Appellants' argument in this respect is predicated on the rule of law referred to as 'Wharton's rule' and as the 'concert of action' rule, which is set forth in 16 Am.Jur.2d 135, Conspiracy, Sec. 16, as follows:

'Sec. 16. Liability where object of conspiracy can only be committed by all parties to agreement.

'Where co-operation or concert between two or more persons is essential to the commission of a substantive crime and there is no ingredient of an alleged conspiracy that is not present in the substantive crime, it is held that the persons necessarily involved cannot be charged with conspiracy to commit the substantive offense and also with the substantive crime itself.

'The rule that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy where the crime is of such a nature that it necessarily requires the participation of two persons for its commission is sometimes referred to as the 'concert of action rule' or as 'Wharton's rule.' The rule does not apply where the substantive offense that is the object of the alleged conspiracy can be committed by a single person. In other words, where more parties participate in the conspiracy than are logically necessary for the commission of the substantive offense contemplated by the conspiracy, the Wharton rule does not apply.'

The quoted rule has apparently never been considered or applied in this jurisdiction, although its existence was recognized in State v. Ferguson, 221 S.C. 300, 70 S.E.2d 355, where the court said,

'It is true that in some cases where concerted action is necessary, as for example certain sexual offenses, it is not permitted to charge one in the same indictment with a conspiracy and with the substantive crime.'

While the rule has been applied in other jurisdictions, within certain limitations, in various situations, it apparently arose in connection with, and has been more frequently applied to, sexual offense, such as adultery and fornication. It is interesting to note that the rule has been the subject of considerable criticism. See the opinion in the case of Robinson v. State of Maryland, 229 Md. 503, 184 A.2d 814. In support of...

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26 cases
  • State v. Crawford
    • United States
    • Court of Appeals of South Carolina
    • 31 January 2005
    ...offense in itself and punishable as such, notwithstanding that the object of the conspiracy has been accomplished"). State v. Wells, 249 S.C. 249, 153 S.E.2d 904 (1967) recognized the existence of Wharton's Rule in South Carolina, but denied its application under the facts of Wells. Wharton......
  • People v. Incerto
    • United States
    • Supreme Court of Colorado
    • 5 February 1973
    ...139 (1904); Commonwealth v. Favulli, Supra; Robinson v. State, Supra; State v. Lennon, 3 N.J. 337, 70 A.2d 154 (1959); State v. Wells, 249 S.C. 249, 153 S.E.2d 904 (1967). See United States v. Figueredo, 350 F.Supp. 1031 (M.D.Fla.1972), which approves this exception to the 'Wharton' rule wh......
  • State v. Crocker, 4038.
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    • United States State Supreme Court of South Carolina
    • 31 October 2005
    ...in any county in which an overt act was done by any of the conspirators in furtherance of their common design." State v. Wells, 249 S.C. 249, 259, 153 S.E.2d 904, 909 (1967); see also State v. Hightower, 221 S.C. 91, 97-98, 69 S.E.2d 363, 366 (1952) (noting that "[t]he rule is generally rec......
  • The State v. Burgess
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    • Court of Appeals of South Carolina
    • 28 January 2011
    ...fact that a person is a friend or acquaintance of the deceased does not render him incompetent as a juror.”); State v. Wells, 249 S.C. 249, 259–60, 153 S.E.2d 904, 909–10 (1967) (affirming qualification of a juror who directly employed victim a year or more prior to trial); State v. Hilton,......
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