State v. Woods

• Decision Date: 04 February 1939
• Docket Number: 14815.
• Parties: STATE v. WOODS et al.
• Court: South Carolina Supreme Court

1 S.E.2d 190

189 S.C. 281

STATE v. WOODS et al.

No. 14815.

Supreme Court of South Carolina

February 4, 1939

[Copyrighted Material Omitted]

D M. Winter, J. J. Gee, U. L. Rast, Kenneth R. Kreps, James D Walters, James A. Hutto, and Harold C. Seigler, all of Columbia, for appellants.

A. F. Spigner, Sol., and C. T. Graydon, both of Columbia, for the State.

FISHBURNE Justice.

In the opinion prepared in this case by Mr. Justice BAKER, he reaches the conclusion that the judgment below should be affirmed as to the appellant, William B. Woods, but, for the reasons stated by him, he holds that a new trial should be ordered for the other five appellants. With reference to the appellants other than Woods, he sustains certain exceptions which charge error to the trial judge in his instructions to the jury.

We concur in the decision of all of the questions discussed and passed upon by Mr. Justice BAKER except his disposition of the two questions which challenge the correctness of the charge. In his opinion, these questions present reversible error. We are constrained to reach a different conclusion on these two issues. In our opinion, the judgment of the lower court must be affirmed as to all of the appellants. A summarized statement of the material facts will be found in Justice BAKER'S opinion. We proceed to consider the points at issue.

The trial judge was requested to give this instruction on behalf of the appellants: "That if you find from the evidence that the death of Captain Sanders was a fresh and independent product of the mind of one of the confederates, outside of, and foreign to, the common design, and growing out of his individual malice, then the responsibility for that act is the one who committed it, and those who are not guilty of such act and did not consent thereto, will not be guilty of that act."

The judge refused to give this instruction as written but, in response thereto, charged as follows:

"I refuse to charge you that proposition the way it is written, because I have already charged you practically the contrary. The design may not have been to kill at all, but if there was an unlawful scheme entered into, then what one did in furtherance of that, all did, and it wasn't necessary, Mr. Foreman and gentlemen, that the original design or scheme should have been to take human life, but if that became necessary and human life was taken while they were carrying out the design or scheme, then the act of one would be the act of all, the hand of one would be the hand of all.

"'Whether or not the act was in furtherance of the common design'--I have numbered that Number 2--'or whether it was the natural and probable consequences flowing from the execution of the common design, is a question of fact to be decided by the jury.'"

It may be conceded as a general proposition of law that while the parties are responsible for all incidental and consequent acts growing out of the general design, they are not responsible for independent acts growing out of the particular malice of any one of the conspirators. But, the language of the charge actually given by the judge substantially covered the principle of law embodied in the request. He specifically charged that it was for the jury to determine whether or not the act (of Woods) was in furtherance of the common design or whether it was the natural and probable consequence flowing from the execution of the common design. By this instruction, the jury was plainly told that if the life of Captain Sanders was taken while the appellants were carrying out their plan or scheme for escape, then the act of one would be the act of all, but that it was for the jury to say whether or not such act was the natural and probable consequence flowing from the execution of the common design. This, by every reasonable intendment, excluded the appellants other than Woods, if his act in inflicting the last fatal stab upon the body of Captain Sanders was not the natural and probable consequence flowing from their prearranged plan to effect their escape.

But, aside from this, it may be regarded as extremely doubtful if the requested instruction was at all applicable to the facts of this case. Each of the appellants testified in his own behalf and they, without dissent, stated that they felt no personal ill will or malice toward Captain Sanders but only intended to use him as a hostage and as a means of gaining their freedom. And, the other evidence in the case disclosed no individual malice.

During the three hours in which the appellants held Captain Sanders captive and bound, they frequently communicated with state and prison officials through a window, and, in the presence of all of them, their spokesman and leader, the appellant Woods, told the officers that if their demand to leave the penitentiary unmolested should be refused, they would kill Captain Sanders. They refused every offer short of freedom, freedom in accordance with the terms demanded by them, and they never surrendered until tear gas bombs, which they believed contained a deadly gas, were shot into the room they occupied. It was then, according to the appellants, that Captain Sanders received the last stab by Woods which resulted almost immediately in his death. When the officers entered this room they found Captain Sanders on the floor, dying, and with his hands still bound. It was clearly for the jury to say, as charged by the judge, whether such act was the natural and probable consequence flowing from the common design.

A fair, honest, and intelligent jury, it seems to us, could have reached no other conclusion than that the threat of the appellants to kill, which had been previously communicated to the officers, if they were not given freedom, had been carried into execution.

Undoubtedly, when the trial judge stated in the quoted instruction, "I refuse to charge you that proposition the way it is written, because I have already charged you practically the contrary", he had reference to the law applicable to withdrawal from the conspiracy. In a full and comprehensive charge on this phase of the case, he instructed the jury: "One who has joined in a common design to kill, or to commit an unlawful act, the natural and probable consequence of the execution of which involves the contingency of taking human life, escapes responsibility for a homicide committed by a confederate in pursuance of the common design, if, before the homicide is committed, he withdraws entirely from the undertaking, and the fact of his withdrawal is communicated to his associates, under such circumstances as would permit them to take the same action. Notwithstanding his withdrawal, he is responsible for a homicide committed in pursuance of the original design, or as a natural or probable consequence of the execution thereof, by one of his associates to whom, prior to the commission of the crime, the fact of his withdrawal had not been communicated, or if it had, was not communicated under such circumstances as would permit his associate to withdraw."

The foregoing instruction had immediately preceded the requested instruction which we have herein set out, and the instruction which was given by the judge was immediately followed by this charge: "Mere cognizance or passive acquiescence is not sufficient to make one a party to the conspiracy."

The only other question which we need to consider is whether or not the trial judge erred in reading to the jury the penalty for kidnaping when the indictment contained no charge of kidnaping.

The appellants requested the judge to give the following instruction: "Overpowering or restraining one in custody of persons who have no liberty as inmates of a prison, by those restrained, is not kidnaping within the purview and intent of the statute making kidnaping a felony."

In response to this request, the judge charged: "Gentlemen, I refuse that in the form in which it is written. I have given you the law in reference thereto, and have told you what is necessary in order to bring a person within the Act. In other words, if you believe from the evidence that the plan, if there was one, was to seize and hold Captain Sanders in order to enable them to escape, and to hold him as a hostage until such escape was effected, then I charge you that such an act would be a felony and constitute kidnaping."

We have concurred in and adopted as heretofore stated that portion of Justice BAKER'S opinion in which he held that the lower court committed no error in reading the statute bearing upon kidnaping.

The contention is made as a ground for reversal that by reading the penalty providing for kidnaping, which is identical with the penalty for murder, the jury was misled and confused and that such charge was prejudicial to the appellants.

After reading to the jury the statute enacted in 1937, Act March 22, 1937, 40 St. at Large, p. 137, defining the crime of kidnaping, and after reading the penalty therefor as a part of the general act, the judge immediately charged the jury:

"Now then, Mr. Foreman and gentlemen of the jury, the law is that if two or more persons form an agreement to commit a felony, any act which they do in pursuance of that scheme, the hand of one is the hand of both, and if they commit homicide while carrying out the commission of that felony, then the law says it is murder.

"I charge you, in connection with that, that the law is that even though the act which they conspired to commit is not a felony, if it is an unlawful act and they go forward, and while engaged in that scheme of carrying out that unlawful act, one is killed, it is either murder or manslaughter, depending upon the view which the jury may take of the evidence, taking into consideration the definitions which I...