*1 before an ac- hurdles many must overcome “The State cused is person punished: warrant; refuse to issue a
(1) magistrate may case a dismiss a after magistrate may (2) prelimi- nary hearing; indict; a refuse to
(3) grand jury may nolle the solicitor may pros; (4) verdict; direct may (5) if one only juror refuse to convict may (6) petit jury doubt; has a reasonable aside set the verdict may notwithstanding
(7) a verdict of the jury; reverse the conviction.
(8) may appellant If the accused can at one of these any person prevail of a free and is On stages proceeding, goes unpunished. hand, at each of the other the State must prevail eight before is stages punishment inflicted.” In cases merit, of this type, totally we tradi- lacking under tionally our Rule 23. No dispose appeal matter involved, of is precedent we find no error of law. It is disservice cases of this to burden the bar with type and to reading long, meaningless opinions require the same be in law books with neces- printed expenses on sary our unwarranted publication rulings appeal. Affirmed. JAMISON, HOWARD, Jr., George Respondent,
William C. v. Howard, Jr., Hallums, Defendants, George Whom Appellant. (2d) 116)
(271 S. *2 Todd, Martin, /. D. Jr. and N. both Leath- Bradford Marm, erwood, Walker, Todd & Greenville, appellant. Smith, Jr., Carter, V. Johnson & Philpot, Jefferson Greenville, Smith, respondent. Calmes, III, D. Greenville, Hallums. for defendant *3 7,
October 1980.
Littlejohn, Justice:
Plaintiff William C. this action brought against Jamison Howard, Hallums, George to re- defendant, Jr. cover suffered as the damages result of a gunshot wound in- flicted at the direction of Hallums. This court heretofore reversed granting by summary judg- ment to defendant Howard and remanded the case for trial. Howard, See Jamison v. 271 S. C. S. trial (1978). Upon Jamison, who was made a para- as a result of the plegic was awarded a shooting, verdict of $356,000.00 $144,000.00 actual damages, plus dam- punitive both ages Hallums and against Howard. Howard Only ap- ; we affirm. peals
At trial the crucial issue as relates to the of How- liability ard was whether Hallums inwas of a collection pursuit owed Howard’s at the time money of the shoot- party shop such that Hallums was ing Howard. acting agent There is no from the appeal implicit finding friend, Hallums ordered his to kill He Morgan, wounded him instead.
The uncontroverted evidence at trial showed that Howard was the owner of Howard’s Hal- Party employed Shop lums as its manager. was the of the Choc- operator Jamison olate City and on Lounge two three occasions had beer and purchased wine from the those On party shop. occasions, would not the merchandise until pay for Jamison he had sold it at his testified that it was lounge. Jamison his that these were credit understanding from purchases party shop. testified that on these occasions had personally cash drawer and paid permitted Jamison owe him and that did not owe (Hallum), Howard Jamison any amount.
In December of 1975 bought worth of $189.00 Jamison beer wine in such a transaction at the He party shop. was unable to the debt repay because of financial promptly difficulties. On at least two occasions Hallums spoke about payment of the debt and both admit the con-' Jamison versations were of a Further, friendly nature. both admit that an extension of time was granted by another adding debt. The outstanding $20.00 circumstances surround- the extension ing are The dispute. becomes when the contradictory events of January 1976 are related. testified as follows:
Jamison Hallums and (1) his friend came to Morgan Jamison’s *4 due; to collect the apartment money Hallums said (2) Howard wanted his or else money downtown; wanted see to Jamison refused tO' (3) pay money to down- go Jamison ; town Hallums then a
(4) handed or- gun with an Morgan der to kill Jamison; and shot him a
(5) Morgan Jamison, rendering paraplegic. not been Hal- and has Morgan apprehended. disappeared about the attack on lums denied that he knew anything Ja- an alibi defense. Howard testified that mison and asserted wine, of beer since he had authorized no credit sales law that are state such transactions against Jamison Hallums’ alibi owed him He bolstered testimony. nothing. At trial, counsel for appropriate stages Howard nonsuit, moved for a directed verdict and for judg- ment the verdict. It was that notwithstanding argued evidence make did not issue jury that warranting finding Hallums was the of Howard agent the col- attempting motions, lection. The trial denied all holding and not the should determine the judge, agency ques- tion. Howard to these excepts rulings.
Before discussing directed verdict we first con- issue, sider Howard’s exception that certain contending testimony was admitted improperly into evidence. The testimony which Howard objects involves statements made allegedly Hallums immediately to' the prior shooting. Jamison testified on direct examination: Jamison “A. Mr. Hallums said that wanted his George money. “A. He told me wanted his George money [Hallums] or he wanted to see me downtown.
“A. He said that wanted his George and he had money to have his money.”
Howard this objected to entire line of on testimony that it ground was as to him and hearsay should not be him, Even if as permitted. hearsay not to exclude it. It was required admissible definitely Hallums. If this action been against had against alone, it would be that the in hardly argued admissible as it relates to the Be Hallums. charge against debate, evidence be admissible one yond may purpose
349 I on Evi- inadmissible for though other purposes. Wigmore Likewise, dence 13. evidence be admissible may against § one defendant and inadmissible v. Player another. against 600, Thompson, S. C. E. In 259 193 S. 531 (2d) (1972). a such situation the be evidence should admitted. The party to the evidence can be the objecting by protected requesting the to instruct the as the judge to for which purpose evidence is such submitted. No being charge requested or at the time the evidence was admitted or the time given at of the of the to the the general law charge jury by judge. no Further, was made failure of the objection to such instruction. give
The the issues and facts in the case before and us those in the case Lazar Co., v. Great Atlantic & Tea Pacific 197 S. 14 C. S. are similar in (1941), In that case many ways. the P of the A manager & Store committed an assault and one battery of the store’s upon Therein this competitors. with quoted, approval, C. Assault and S. 857: Battery, p. § J.
“Where it material that show motive assail- ant or the existence of malice ill or will on his order part, to enhance the damages any for other lawful purpose, prior occurrences and both his decla- prior subsequent rations, actions, conduct, well as those accom- which the act are pany legitimate evidence that purpose.” As issue, relates to the directed verdict we with the agree of Howard argument effect that a denial summary does not judgment mean that a directed verdict necessarily should be denied also. motions The two are akin sense that of either holds as a matter law granting that a is not entitled party Summary judgment prevail. in terms of “no issue of fact.” Directed ver- speaks genuine dict in terms of “the reasonable inference be speaks only drawn from whole of the A on a mo- evidence.” ruling tion for on motion summary judgment ruling
directed must stand has verdict which upon showing been made to court at the time motion is submitted.
Summary by reversed judgment this court because we were of the opinion *6 of exist. Denial of the issues fact did motion genuine because the for a directed must be sustained evidence verdict is inference on the of more than one reasonable susceptible the issue. When whole the agency of evidence is consid ered, we cannot as a say matter of law that reasonable men could not as whether Hallums was was not disagree as in of a collection for the acting manager pursuit party In are, and for Howard. this shop we making ruling of course, with our (in well established con keeping rule) in the evidence the most favorable to sidering light Even if evidence is evaluated without including disputed it is testimony, that more than apparent one rea- sonable inference was Bowers, created. Dorothy Jamison’s sister-in-law testified, and Hallums’ girlfriend, without ob- jection, that Hallums “a cut” from got the credit transac- tion and me cold that the man was on his back
“[H]e because he had an account of the in give the store money and stuff that out of the goes store. He had to an give account of it else it would come out of his pocket.”
Clearly, the of testimony that he beer procured Jamison and wine at the from party Howard’s shop Hal manager, and the lums, that Hallums testimony thereafter came to his apartment of for the pursuit money collecting prod ucts create a reasonable inference that procured Hallums for Howard. In v. agent Drayton Industrial Life, S. C. 31 S. E. this said: (1944), “It is true that not be established agency may by solely the declarations and conduct of the but such alleged agent, declarations and conduct are admissible as circumstances in connection with other evidence to establish the tending agency. of fact agency
It often occurs that direct proof circum- be established by But agency may .... impossible conduct, be stances, and may relations and proved apparent testimony.” as circumstantial as well positive It is the contention of Howard that notwithstanding his own evidence, testimony plus negates to the exclusion all other inferences. reasonable agency If the of Howard and Hallums is at full testimony accepted value, the issue becomes a close and difficult one. agency verdict, When a directs he effect to the jury, says evidence; “there is no reason to and I disbelieve you are a matter of law to believe it.” When there is required reason to discredit is not testimony, required end the case as matter of law. There was much reason discredit the of both Hallums Howard. The reveals, believed, evidence that Hal- jury apparently issue, lums ordered an execution. On the ad- credibility *7 been assault with mitted that he had convicted of and battery intent to has there are dis- lose, kill. Howard much and his in and his testimony between crepancies testimony in same is true of Hallums’ The given deposition. case, this we are
and his Under all of the facts of deposition. been error the trial the that it would have of opinion the and Hal- to direct the to believe Howard jury judge lums testimony. the trial
It is next maintained Howard that judge Hallums’ ar in testimony regarding erred allowing in for assault and with battery rest and conviction he a dual testified, Hallums appeared tent to kill. When he was a witness. Because a defendant and as capacity: out the witness, entitled to bring counsel was Jamison’s assault and battery had been convicted of fact that Hallums The moral kill, crime turpitude.1 involving with intent to from counsel refrain making directed meticulously judge battery of and question of whether assault at is the Not issue turpitude. involves moral high aggravated nature reference to the assault and The involved. particular battery and the were given answer as follows: question propounded Are the same who convicted you “Q. got of Sessions on Decem Greenville Court General County 6th, 1976, with ber for assault and intent to kill? battery Yes, “A. sir.”
We no error. find
Howard next attacks the failure of the trial judge, motion, upon sequester jury. During trial, course of the various four-day newspaper .ac counts of the trial Each account contained refer appeared. ence to Hallums’ conviction and sentence. The sequestra tion of the is a matter within the discretion jury The able judge. trial instructed the to avoid jury and local news Each newspaper day programs. polled to determine if his had been jury instructions followed. We find no abuse of discretion.
Finally, Howard claims the jury charge excessively long While the on the confusing. charge scope matter course is employment we find no basis for lengthy, asserted any error. The evidence at the trial of presented this case was sufficient for to find that Hallums jury for Howard at the acting time he ordered the assault and on The battery requested repeat on there but indication charge agency, no that it mis- understood the law. of the lower Accordingly, judgment court is
Affirmed. Gregory
Lewis, C. J., and Harwell, and JJ., concur. Ness, J., dissents. :
Ness, (dissenting) Justice dissent, I set reasons forth in earlier adhering my dissent, Howard, in Jamison v. 271 5. 247 C. S. that Hallums not (2d) (1978), within acting to shoot of his when he ordered Morgan employment scope as a matter of I entitled to would hold Howard judgment a directed verdict. law grant 121) (271 E.S. Carolina, CARNES, Appellant. Respondent, v. of South Ernest STATE McLeod, Gen. Daniel R. Atty. Gen. Em- Deputy Atty. Moore, met H. Columbia, Clair and William K. Atty. Staff appellant. Marm, II, Columbia, James L. respondent.
October 1980.
Ness, Justice: Carnes, Ernest indicted on charges
Respondent, He entered a larceny. rape plea guilty rape was sentenced to twenty years.