State v. West

• Decision Date: 21 February 1927
• Docket Number: 12160.
• Parties: STATE v. WEST et al.
• Court: South Carolina Supreme Court

136 S.E. 736

138 S.C. 421

STATE v. WEST et al.

No. 12160.

Supreme Court of South Carolina

February 21, 1927

Appeal from General Sessions Circuit Court of Laurens County; Wm. H Grimball, Judge.

Douglas West and Rosemand Buzhardt were convicted of housebreaking and larceny, and they appeal. Affirmed.

Watts C.J., and Purdy, A. A. J., dissenting.

W. B Knight and O. L. Long, both of Laurens, for appellants.

Solicitor H. S. Blackwell, of Laurens, for the State.

BLEASE J.

The defendants West and Buzhardt were tried in the court of general sessions of Laurens county on an indictment containing two counts, one for housebreaking, and the other for larceny. Both were found guilty and sentenced. They have appealed to this court.

The state had testimony from one Alverson to show that the defendant West and Alverson had an agreement to break into and rob a store situate in the country; that on the afternoon preceding the commission of the crimes alleged to have occurred that night Alverson and West went to Buzhardt's home; West and Buzhardt talked, but the conversation was not heard by Alverson; that the store was broken into and robbed about 8 o'clock p. m. by Alverson and West; that the goods stolen were carried some distance to a waiting automobile, in charge of Buzhardt; and later the goods were conveyed to Alverson's home. West and Buzhardt denied participation in the crimes and all knowledge thereof, and endeavored to establish pleas of alibi.

The appellants complain that the circuit judge erred when he gave the following instruction to the jury:

"The next question for you is the form of your verdict. We have two defendants, and I charge you, first, that, if you find both defendants guilty, you have got to find them guilty both of the same degree of crime, but you can find one not guilty and the other guilty."

In order to make clear what the circuit judge had in mind when he gave the instruction quoted above, we think we should insert other portions of his charge, which were as follows: "Now, I charge you further that, when two or more people aid, assist, or abet one another in the commission of a crime, the act of one is the act of all; in other words, that, if two or more people engage in a common enterprise, helping and assisting one another in the shooting of a man, the pistol of one is the pistol of all, and the act of one is the act of all. Now, gentlemen of the jury, that is the law of this case applicable to the facts which you have heard, and you are to take that law and apply it to those facts as you find them to be from the testimony and bring in your verdict.

The next question for you is the form of your verdict. We have two defendants, and I charge you, first, that, if you find both defendants guilty, you have got to find them guilty of the same degree of crime, but you can find one not guilty and you can find the other guilty. So that the form of your verdict will be one of the following forms: Either 'we find the defendants Douglas West and Rosemand Buzhardt not guilty,' or 'we find the defendants Douglas West and Rosemand Bushardt guilty,' which will mean that they are both guilty of housebreaking and also both guilty of grand larceny; or 'we find the defendants Douglas West and Rosemand Buzhardt guilty of housebreaking and guilty of petit larceny,' or 'we find the defendants Douglas West and Rosemand Buzhardt guilty of housebreaking,' which would eliminate the charge of larceny; or 'we find the defendant, name one or the other, guilty and the defendant, name the other one, not guilty,' or 'we find the defendant, and name one or the other, guilty of housebreaking and guilty of petit larceny, and we find the defendant, name the other, not guilty,' or 'we find the defendant, name one of them, guilty of housebreaking, and we find the defendant, name the other one, not guilty'; and these are the various forms of your verdict."

There are two reasons given for the assertion that the charge was erroneous: (1) That it was a charge on the facts; (2) that it did not contain a sound proposition of law, in that the jury could have found one of the defendants guilty of housebreaking and larceny and the other defendant guilty of larceny.

It is the duty of the court to charge the jury as to the law which is applicable to the facts as brought out in testimony. The...