State v. Young

• Decision Date: 04 November 1963
• Docket Number: No. 18117,18117
• Parties: The STATE, Respondent, v. W. E. YOUNG, Appellant.
• Court: South Carolina Supreme Court

Page 210

133 S.E.2d 210

243 S.C. 187

The STATE, Respondent, v. W. E. YOUNG, Appellant.

No. 18117.

Supreme Court of South Carolina.

Nov. 4, 1963.

Jenkins & Perry, Columbia, Ernest A. Finney, Jr., Sumter, for appellant.

George A. Grant, Aiken, R. Kirk McLeod, Sol., Sumter, Daniel R. McLeod, Atty. Gen., Everett N. Brandon, Asst. Atty. Gen., Columbia, for respondent.

MOSS, Justice.

W. E. Young, the appellant herein, was indicated by the Grand Jury of Aiken, County, at the 1962 May term of the Court of General Sessions, and charged in one indictment with the crimes of (1) assault and battery of a high and aggravated nature; (2) assault and battery with intent to kill; (3) pointing a pistol at a person; and (4) grand larceny. The case came on for trial before the Honorable J. B. Ness, and a jury, on May 14, 1962. During the course of the trial and before the case was submitted to the jury, all charges against the appellant were eliminated except the charge of assault and battery of a high and aggravated nature. The appellant was convicted of this latter offense and sentenced to serve a term of six years in the State Penitentiary. Due notice of intention to appeal to this Court was given.

The first question for determination is whether the trial Judge erred in refusing to grant a continuance in accordance with the appellant's motion.

This case was first called for trial on May 7, 1962 and was continued until May 8, 1962 at the request of the attorney for the appellant. The case was again called for trial at the opening of court on the morning of May 8, 1962 and, at such time, a motion for a continuance was made on the ground that the appellant was physically unable to stand trial, due to a fall suffered while he was leaving his attorney's office the night before. It was stated that the appellant was in the Veterans Hospital in Augusta, Georgia. The trial Judge continued the case until 2:30 P.M. of that day and directed an investigation to be made as to the physical condition of the appellant. A hearing was held by the trial Judge, in Chambers, on May 8, 1962, to determine whether the appellant was physically able to go to trial. A certificate was presented from the Veterans Hospital of Augusta, Georgia, certifying that the appellant was admitted to the hospital at 2:00 A.M. on May 8, 1962, 'as a sleeper' and that after observation and x-ray it was determined that he was not in need of hospitalization and was released to go home. There was also a certificate from Dr. R. S. Weston, Sr. that the appellant had been admitted to the University Hospital at Augusta, Georgia, and was under heavy sedation because of his general painful condition. Dr. H. D. Wyman testified that he examined the appellant on the night of May 7, 1962, and found him suffering from no injuries. Dr. Thomas J. Lattimore testified that he examined the appellant on May 8, 1962, at the request of the Court, and stated that the appellant was able to stand trial without any danger. This case was again called for trial on May 9, 1962, and counsel advised the Court that the appellant had stated the only way he could come into court was on a stretcher and in traction. The case was then continued until May 14, 1962, at which time the case was called for trial, and a motion was again made to continue the case. The Court directed that the trial proceed and found that the appellant was physically able at the time to stand trial.

This Court has held in numerous cases that a motion for a continuance is addressed to the discretion of the trial Judge and his disposition of such motion will not be reversed unless it is shown that there was an abuse of such discretion to the prejudice of the appellant. State v. Britt, et al., 235 S.C. 395, 111 S.E.2d 669, and State v. Homewood, 241 S.C. 231, 128 S.E.2d 98. In the cases of State v. Francis, 152 S.C. 17, 149 S.E. 348, 70 A.L.R. 1133; State v. Rickenbaker, 138 S.C. 24, 135 S.E. 651; and State v. Whitener, 228 S.C. 244, 89 S.E.2d 701, this Court held that there was no abuse of discretion in refusing to continue case because of the defendant's physical condition. We find no abuse of discretion on the part of the trial Judge in refusing the motion of the appellant for a continuance in view of the testimony of the physicians as to the physical condition of the appellant and that he was able to stand trial without any danger.

The appellant charges the trial Judge with error in permitting irrelevant testimony of the witnesses Dr. H. D. Wyman, Dr. H. A. Langston and D. G. Vess, on the ground that such testimony was not relevant to any issue on trial and such testimony was not in reply. We need not consider whether the evidence given by these witnesses should have been excluded because appellant's counsel cross-examined these witnesses concerning their testimony without reservation of his objection. The objection was thereby lost and if any error had been committed in the admission of the testimony of these witnesses it was cured. State v. Cavers, 236 S.C. 305, 114 S.E.2d 401; State v. Puckett, 237 S.C. 369, 117 S.E.2d 369, and State v. Bass, 242 S.C. 193, 130 S.E.2d 481. This exception is overruled.

The appellant asserts that the Court of General Sessions of Aiken County lacked jurisdiction to try him for the crime of assault and battery of a high and aggravated nature. This question of jurisdiction was not raised by the appellant at the time of his trial. Even though he did not raise the question of jurisdiction in the lower Court, objection to the jurisdiction of the subject matter may be taken advantage of at any stage of the proceeding. State v. Grant, 34 S.C. 109, 12 S.E. 1070.

The original record filed in this Court did not contain a copy of the indictment. Upon motion of the appellant we permitted such indictment to be made a part of the record and it charges that on March 19, 1962, that W. E. Young, the appellant, in and upon one James A. Rish, with his hands and fists, did make an assault, and with said hands and fists did 'hit, strike and beat, and then and there did wound and ill treat, thereby committing an assault and battery of a high and aggravated nature upon the said James A. Rish, against the form of the statute in such cases made and provided, and against the peace and dignity of the State.'

The Court of General Sessions has jurisdiction to try a defendant charged with an assault and battery of a high and aggravated nature. State v. Beadon, 17 S.C. 55, and State v. Smalls, 17 S.C. 62. The indictment in this case, on its face, charges such an offense. It is the position of the appellant that in the indictment in this case there is no allegation as to use of a deadly weapon; there is no allegation as to the inflicting of serious bodily harm; there is no allegation of intent to commit a felony; there is no allegation that a great disparity existed between the parties insofar as ages or physical condition is concerned, and there is no allegation of resistance of lawful authority or any other of the elements necessary to constitute the offense of assault and battery of a high and aggravated nature. This position of the appellant, in our judgment, is directed to the sufficiency of the indictment rather than to the jurisdiction of the Court to try the offense charged. The indictment here charges an assault and battery of a high and aggravated nature in general terms. The irregularities in the indictment of which the appellant complains are not jurisdictional. The defects or irregularities of which the appellant now complains were apparent on the face of the indictment, and the objection to the sufficiency of the indictment was waived by the failure of the appellant to demur thereto or to make a motion to quash the same before the jury was sworn, as required by Section 17-409 of the 1962 Code, which provides: 'Every objection to any indictment for any defect apparent on the face thereof shall be taken by demurrer or on motion to quash such indictment before the jury shall be sworn and not afterwards.' The appellant, having failed to properly raise the issue below is precluded from doing so here. State v. Jacobs, 238 S.C. 234, 119 S.E.2d 735.

There are numerous instances in the record where the attorney representing the appellant stated that count 1 charged the appellant with assault and battery of a high and aggravated nature. At no place in the record did the trial attorney, who does not represent the appellant in this Court, suggest or take the position that the indictment was insufficient to charge the appellant with the crime of an assault and battery of a high and aggravated nature. The record shows that the trial attorney requested the trial Judge to instruct the jury, which was done, as follows:

'I was going to ask your Honor to charge that the only element making any aggravation to the assault and battery with which the defendant was charged...