State v. Wharton, 19944
| Decision Date | 15 January 1975 |
| Docket Number | No. 19944,19944 |
| Citation | 211 S.E.2d 237,263 S.C. 437 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Howard WHARTON, Appellant. |
John Bolt Culbertson, Greenville, for appellant.
Sol. William T. Jones, Greenwood, Atty. Gen. Daniel R. McLeod, Deputy Atty. Gen. C. Tolbert Goolsby, Jr., and Staff Atty. Joseph R. Barker, Columbia, for respondent.
Howard Wharton, the appellant herein, was indicted by the Grand Jury of Abbeville County on the charges of (1) breaking and entering, breaking into a motor vehicle and larceny; (2) assault and battery with intent to kill and carrying a pistol; and (3) unlawfully pointing a firearm at one Claude London, Jr. The appellant waived his right to a trial by jury and consented to a joint trial of the three indictments by the presiding judge, the Honorable Francis B. Nicholson. The trial judge found the appellant guilty of the following offenses: (1) malicious injury to personal property of a value of more than $50.00; (2) aggravated assault; and (3) pointing a firearm at the person of Claude London, Jr. The appellant was given a concurrent sentence of three years, suspended upon the service of four months, with probationary supervision for three years after release, and restitution in the sum of $100.00 for property damage to the automobile of Willie Elmore. The appellant gave due notice of intention to appeal to this Court.
The appellant made a timely motion for a directed verdict on the ground that the State failed to prove that the alleged crimes occurred in Abbeville County and that the court, therefore, had no jurisdiction. Such motion was denied and error is alleged.
Article I, Section 11 of our Constitution requires a criminal prosecution to be tried in the county in which the offense was committed. The right of a party to be tried in the county where the crime was committed is jurisdictional. State v. Wiggins, 257 S.C. 167, 184 S.E.2d 697. However, it is not necessary in a criminal case that venue should be proved affirmatively if there is sufficient evidence from which it can be inferred. City of Florence v. Berry, 61 S.C. 237, 39 S.E. 389. Evidence of venue, though slight, is sufficient in the absence of conflicting evidence and may be proved by circumstantial as well as direct evidence. Loftin v. State, 230 Ga. 92, 195 S.E.2d 402. There is no conflict in the evidence in this case, all of the witnesses testifying that the alleged crimes took place at 'Wharton's Place.' The direct testimony by the State as that deputies from the office of the Sheriff of Abbeville County investigated these cases. There is also testimony that when an application was made for a beer license for Wharton's Place, the Sheriff of Abbeville County testified before the South Carolina Tax Commission in opposition to the granting of such.
We further find from the cross-examination of the Sheriff by counsel for the appellant the following:
It also appears that prior to sentencing and during a colloquy between the trial judge and the appellant, he admitted that his place of business was located a mile or two beyond the Abbeville City Limits.
We conclude that there was sufficient circumstantial evidence that the alleged crimes took place in Abbeville County, and, in addition, there was no contrary evidence adduced by the appellant. Thus, this exception is without merit.
It is the contention of the appellant that he was entitled to a directed verdict for insufficiency of the evidence to support his conviction. It is well settled that on an appeal from a refusal to direct a verdict of not guilty, the evidence and inferences that may be reasonably drawn therefrom have to be viewed in the light most favorable to the State, and if there is any competent evidence supporting the verdict, such will not be set aside. State v. Wheeler, 259 S.C. 571, 193 S.E.2d 515.
The appellant argues that the trial judge erred in finding him guilty of malicious injury to personal property of a value of more than $50.00. There is the testimony of two witnesses in behalf of the State that the appellant fired a bullet through the windshield of the automobile belonging to one of the witnesses. The testimony of these witnesses clearly indicates an unlawful, willful and malicious intent on the part of the appellant. There is also testimony that the value of the windshield exceeded $50.00 and that the damage thereto was approximately $100.00. The appellant denied that he shot the windshield of the automobile. It is perfectly apparent that there was a conflict in the testimony, and the trial judge resolved such against the contention of the appellant. This Court is without jurisdiction to weigh contradictory evidence or to review findings thereon. State v. Rector, 166 S.C. 312, 164 S.E. 872.
The appellant also argues that the testimony of the two prosecuting witnesses is full of contradictions and should not be believed. We have held that a motion for a directed verdict of acquittal is properly refused where the determination of guilt is dependent upon the credibility of the witnesses, as this is a question that goes to the weight of the evidence and is clearly for determination by a jury, here, the trial judge. State v. Pitts, 256 S.C. 420, 182 S.E.2d 738. The exception posing the foregoing question is without merit.
The appellant also asserts that the trial judge erred in finding him guilty of aggravated assault. He alleges that there was no showing that the assault was accompanied by aggravated circumstances; that the theory of the State is highly improbable and the testimony of the prosecuting witnesses is unreliable.
In State v. Jones, 133 S.C. 167, 130 S.E. 747, we defined the crime of assault as an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another. There was testimony by the prosecuting witnesses that the appellant used a pistol, a deadly weapon, in the commission of the assault. An assault with a pistol is one of an aggravated nature. State v. Burch, 43 S.C. 3, 20 S.E. 758. There is ample testimony in this record...
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...650, 651; State v. Fleming, 254 S.C. 415, 420, 175 S.E.2d 624; State v. Pitts, 256 S.C. 420, 427, 182 S.E.2d 738; State v. Wharton, 263 S.C. 437, 443, 211 S.E.2d 237; State v. Ham, 268 S.C. 340, 233 S.E.2d 698. See also the many cases listed in 7A West's South Carolina Digest Criminal Law, ......
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