*1 570 STATE, Rеspondent, Boyce AVERY Sales, Appellants Lonnie
(180 (2d) 190) E.S. *2 McIntosh, Williams, Jr., W. Messrs. John W. and John Columbia, Appellants, *3 Foard, Jr., John W. Solicitor, Esq., Respondent, 29, March 1971.
Lewis, Justice.
There were two riots in October inmates at the 1968 by Institution, South Carolina Central Correctional one on 1st and another on October 5th. The October prosecutions al., C., E., et 179, State Greene S. S. involved (2d) first in this incident and the case arose out charges others, six the second. The with appellants, charged 55-7.2, with violation of Section to the rioting Supplement 1962 Code of Laws. Four entered at the pleas guilty one, ill, of the trial and became was not beginning who tried. tried, three were remaining resulting conviction of of one. two (the appellants) acquittal
The issues the fol- be of under presented may disposed lowing questions:
1. Was it error for the trial to refuse to judge quash indictment on the that the statute under ground which the defendants were indicted was unconstitutionally vague?
2. Was it error for the trial to refuse judge appellant’s motion for a severance?
3. Was it error for the trial to refuse to exclude from the courtroom those who had pleaded guilty?
4. Was it error to refuse to sentence before trial those defendants who ?
5. Did the trial err in his with reference made in several to the cross-exam- objections particulars ination the solicitor and defense Sales *4 witnesses ?
6. Was it error for the trial to refuse relieve the to defender from further of public representation Avery? first, error in the refusal of their charge
Appellants, motion to the indictment that upon ground quash in 55-7.2, which were they Section under supra, dicted, because does not de is unconstitutionally vague in offense this Riot is common law fine the crime of riot. a 574 crime, in
State and the of as State definition v. adopted 337, has followed Connolly, Rich. been in consistently our the definition of decisions. The contention that is without merit. Aber- offense unconstitutionally vague Cir., v. nathy Conroy, 429 F. 1170. (2d) It is next in contended that the lower court erred over- a motion and ruling made severance by appellants that, trials. separate From the record it when the appears trial, case was called for trial directed that and all motions on behalf defendants would be considered of been at of the having made appropriate stages proceed- overruled, and which in defendant’s to ings regard rights those motions presеrved.
It is now desire agreed appellants to move for a severance or trials. Such separate a motion was addressed to the sound discretion of the trial judge. While the record affords sound basis for the criti cism that the by the procedure adopted trial judge, all motions and denying them be later permitting record, inserted indicates a failure to them the give judicial entitled, consideration to which were there is no showing from the probable prejudiсe appellants denial of the motion. The arose out of the present charges same facts uncomplicated and circumstances there was and no conflict in the defenses Indicative of the interposed. ability the facts as to the jury keep separate par ticipation each of the defendants riot is the alleged fact that one of the went to trial was ac defendants who quitted.
While defendants eight charged the same in- dictment, four and one was not tried be- illness, cause of three one leaving only (appellants other) who were tried of a four of the together. entry plea by the continuance of case another against amounted to a from that severance their trial of appellants. Williams, 63, S. 164 S. E. State 166 C. 415.
The denial of the motion for a severance in no resulted probable legal prejudice appellants.
Error is also in the refusal of charged the triаl judge to exclude from the courtroom the defendants who had entered The four who guilty defendants pleas. the pleaded at outset of trial guilty the remained in the courtroom the trial of the throughout appellants.
The alleged riot occurred inmates. among prison Those and charged of the witnesses many who testified were serv- ing long prison terms. Of is not necessity, contended otherwise, more than normal be security measures had to taken in and about the сourtroom the trial. during Appel- effect, lants in the continued in the urge, presence courtroom of the four defendants who in- creased the size of the force at the trial security required and resulted in the impact such prejudicial upon jury the innocence to which of were destroy presumption they entitled, them from a fair and precluding receiving impartial trial.
It is true that who entered guilty pleas were on not not trial and did but were more testify, than spectators. mere were riot They participants of main identity those was one of the participating ques- tions to be The identification witnesses of decided. those the court- and the allegedly presence participating room justified. of the was for that participants purpose
There no contention that more measures security taken the trial than or if the con- during necessary proper, tinued in the courtroom presence of thosе who guilty pleaded was justified.
The record discloses no or fact circumstances show that the size of the force security maintained about courtroom benefit deprived appellants of the in- presumption nocenсe or other them precluded from way receiving a fair and trial. It did not impartial deprive appellants’ codefendant benefit innocence presumption rights as to why appellants’ and no is offered explanatiоn *6 those of affected and not been so have would prejudicially the same jury. by codefendant was acquitted their who Four of those indicated with jointly appellants trial, not the outset of the but were at was com sentenced until after the trial of appellants the the is now claimed that delay sentencing It pleted. of the right entered denied appellants four who guilty pleas to testify these witnesses for obtaining compulsory process and Fourteenth Sixth the by in their favor as guaranteed so, This is Constitution. the States Amendments to United inevitably in sentencing delay because the is argued, had guilty who pleaded the minds of those created in co they sentence if receive a lenient would they belief that for testify appellants. the to by failing with State operated reluctance State-induced that the claimed is contended It co- call their to of the right to testify deprived appellants behalf. in their as witnesses were not codefendants who entered guilty pleas or defense. either State by called as witnesses or were they that promised There is no showing is there any Neither of their plea. because leniency expected to for testify or refused reluctant were they that showing leniency, they expected however Assuming appellants. only could sentence a reduced or the hope expectation admissibility. not its their testimony, affect the weight were The codefendants Law 805. § S. Criminal C. J. trial, all were at throughout in the courtroom present for witnesses, testify competent as times available available had the Appellants or the defense. either the State do so. had elected to witnesses, they if call them right bare of any proof is support record The present sentences would have in af- any way delayed claim that the In codefendants. testimony nature of the fected the rule an unwritten fаct, that there was shows testimony not “rat” on the would inmates that one among prison had that, if others, appellants is inferable from which it called their codefendants, inmates, who were fellow prison would or, least, have testified in their favor at would not have testified them. against
The contention that of the con- appellants deprived stitutional right compulsory process wit- obtaining nesses is unsupported law or the facts.
Neither is there merit in the which excеptions allege that the trial erred in his on the objections made to the cross examination the solicitor of the ap- pellant Sales and some of the defense witnesses. In general, the contention is that the trial allowеd the solicitor to ask (1) questions convictions of concerning appellants for crimes not moral involving turpitude, (2) ques- tions which were argumentative and repetitious. It argued *7 that the effect the cumulative challenged when questions, trial, taken in the context of the whole entitles appellants a new trial.
We find it in unnecessary review detail the several objections made and the thereon. In all practically instances the trial sustained judge the objeсtions to testi- in mony and the question, record fails to show the simply prejudicially and repetitious as argumentative questions claimed by appellant.
The final concerns question the refusal of the trial judge to relieve the defender public from representation ap- pellant Avery. It that the appears third during day trial some arose the disagreement between defender public and Avery to the witnesses to be called in the latter’s behalf, in a to the court the de- resulting request by public fender that he be relieved of the of further duty representing The Avery. matter was into the court and inquired by was request refused. question whether counsel should have been
relieved of further representation оf his client was a matter addressed to the discretion of trial judge, and in case only of an abuse of such discretion will this court interfere. in exercised his discretion
The trial judge properly to the attests abundantly vig this case. The record of representation orous and competent after request before and defender both public he be discharged. is accord- and the judgment
All are overruled exceptions ingly,
Affirmed.
Moss, C. and and J., Littlejohn, Bussey, Brailsford JJ-, concur. (concurring).
Bussey, Justice While some of thе involved here are sim questions quite ilar to some involved State Greene questions al., et 179, S. I C. 180 S. E. am convinced that there (2d) was no real case instant prejudice concur in the accordingly majority opinion.
While, as out in pointеd Greene, dissent in my it is error for a trial to refuse to exercise his discretion with to a motion respect his properly addressed to within discretion, sound where a of motion particular a disposition law, as a matter of then no error can be required pred- icated In failure to exercise discretion. the instant upon case, view, record nor disclose my neither the the briefs facts which the trial exer- would have warranted his discretion in of a It be favor severance. cising might *8 three tried mentioned that only people being together and the offense for were indicted which required no or more There being alleged of three participation people. exercisе of the discretion call facts which would into play to hear his failure follow that of the trial would judge, motion, concededly improper, though even and consider the was nonprejudicial. course of the cross-examinatiоn made
Objections are of the defense witnesses and some Sales The made Greene. to some of the objections similar quite case in the instant thereabout of the trial rulings were, however, from quite different rulings Greene case, I and here am Honor satisfied that His his cured matters which otherwise have well constituted might error. prejudicial STATE, Respondent, PETERSON, v. Frank Appellant
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