*1 548 court
of the conference. It is well known that dockets equally no must be on settlements because appre- operated largely ciable of the cases filed court can be tried actually portion before a conclusion. dockets must be final Since settlements, current and attorneys kept largely by litigants be It discovery. should allowed liberal would appear lists of the trial that the poten- concluded exchange in their tial witnesses would parties quest help course, would, truth. Such increase likelihood whole no error. of a fair trial. We find Affirmed. Bussey
Moss, C. J., JJ., Brailsford, Lewis, concur. STATE, GREENE, Painter, Respondent, Edward Fred v. Floyd, Ronald Tommy Downing, Myers, Derrill Brown Frank
Appellants. (2d) E.
(180 179) S. *4 Jr., and John Williams, Messrs. Kermit S. John W. King, Columbia, McIntosh, W. Appellants, *5 Foard, Jr., W. Esq., Columbia, John Solicitor, Respondent, *6 29, 1971.
March
Littlejohn, Justice. Cor- 1, 1968, the Central at South Carolina
On October occurred, Institution, resulting a riot by prisoners rectional and guards Six $50,000.00 in damages. more than property turmoil, a result as were hospitalized twelve prisoners six are hours. The appellants four or five lasted about which 1968, 9, trial on December brought of twelve inmates 55-7.2, and section in violation of Code rioting with charged to facilitate with which of weapons with charged possession section 55-6. in of Code violation an escape, entered (all defendants prisoners) Four of the twelve trial; others two pled at the beginning pleas guilty all The convicted trial. course of the during guilty all, Downing, and except of rioting, of the six appellants an escape. which to facilitate with weapons possession In another riot took a similar place. October (On one was ac- convicted and two were trial four pled guilty; kin- and inasmuch also That case was appealed, quitted. to the case of raised, is made reference issues were dred 190, filed in this al., court.) et E. 180 S. (2d) v. Avery, State of twenty-eight testimony The The lasted five days. trial submitted was witnesses, were prisoners, of whom many officials, enforcement law many reasons For jury. security unarmed, uniform, and were armed and plainclothed the courtroom. and about Williams, Greene, defender, public represented W.
John Kermit Painter, was Floyd. King Myers appointed Kinard, Brown, T. Burney appointed represent Jr. Downing. to represent of the evi- sufficiency raises no issue of the
This appeal to the There is no but jury. the case carry question dence a riot that occurred. It of the defendants that position did and alibi witnesses were they participate, presented court, who, believed, to the if exonerated have them. might hand, On the other there was that each of the testimony defendants did obviously jury believed participate, this evidence. of the case contains the statement agreed following
matter:
“When the trial, case was called for His Honor directed and all any motions on behalf of the defendants would be considered as been made at having appropriate stages and overruled and proceedings defendants’ rights to those motions would be regard For the con- preserved. Court, venience of the those motions which would have *7 made at trial and which are pertinent are set forth appeal below. will be referred to in the They and exceptions argu- ment as were made at the though they appropriate stages trial, with and appropriate specificity argument. Motion for continuance on
“(a) defendants; behalf of defendants; Motion for a severance of “(b) Motion to the Indictment “(c) because of quash the un- constitutional of the statute it vagueness which upon ; based Motion that be
“(d) sentenced guilty pleaders before trial; continuance of Motion that from the be excluded
“(e) guilty pleaders courthouse; and or, Motion for an arrest of in the alterna-
“(f) judgment tive, a new trial.” addition,
In record reflects that occurred following when case was called for trial. Honor
“Mr. Williams: If Your before we draw please, I like to malee some motions— would Jury, I’m to let you “The Court: make all the motions going to and I’m to mark them heard let want and then going you in them to and them the reduce record. Note writing put you kind of motion that want to make every they and mark them heard and overruled.”
The motions were not reduced to writing put record.
Motions for severance and continuance are both ad dressed to the sound discretion of the trial judge State, under the law this isit well settled that the exercise of such discretion will not be disturbed on in the absence of clear appeal abuse thereof. State v. E. Harvey, 253 S. C. (2d) S. 657 (1969). contend that “His Honor Appellants erred refusing continuance, Defendant Brown’s motion for a said error such refusal denied Brown his being a fair right trial.” must, course,
We determine from solely the record before us whether the erred judge as a matter of law so, and if whether such error was prejudicial to the defendant, Brown. Error without prejudice not a basis for It a new trial. should be granting noted that the other seven defendants indicted did not jointly seek a continuance. After stated at the commencement of the trial that all motions would be considered as been made at having appro priate overruled, stages proceeding and defend ants’ else rights preserved, nothing appears record which could be possibly interpreted relating continu ance until we read the last as follows: exception
“His Honor in erred defense overruling counsel’s motion and, for an arrest of in alternative, the judgment a new for trial, said error the trial being error during judicial in motions, the treatment improper the Soli- questioning by citor, Court, comments the the improper by Solicitor and witnesses, the admission of character evidence improper the of a melodramatic prevalence and other in- atmosphere fluences had to combined the defendants of a deprive fair trial.” (Emphasis added.)
If a trial new from the trial basis of sought judge continue, failure to the therefor do not in grounds appear the record.
There is filed with this court an affidavit of Brown’s counsel 9, dated November months after (23 the which sets trial), Brown’s factually forth why counsel contends the case should have continued. Nor this mally affidavit would not be considered as the part record, but in inasmuch as it is referred to state agreed ment we consider the same in fairness counsel and defendant.
It does not in elsewhere appear record but it proper, does in the appear affidavit that counsel was for appointed Brown order 27, 1968; November signed the attorney did not receive notice of the appointment until November 29. The case was called for 9, trial on December Monday, and it is the basic contention of Brown that his attorney did not time to have is get ready trial. It submitted that from the received, date notice was intervened, two weekends in leaving actuality only workdays five for preparation. motion for a
Obviously, any continuance should be considered on the merits before a trial commences. It difficult determine what motions just had mind he when marked them heard at the begin of the trial the case. ning State’s counsel that he argues did not refer to motions for a continuance since the granting of such would have the trial. postponed is, however,
There in the affidavit attorney’s something which we significant quote: affiant, chambers,
“3. That called to the attention of his intention to make Presiding Judge numerous motions and that a motion for them; continuance was and the among indicated that he would not Presiding Judge hear mo- any would, instead, made, tions but consider all motions as heard overruled; and that statement Presiding Judge this trial; effect appears Transcript *9 558 was,
it trial, at time of the affiant’s belief it that was not to make motions at necessary that since all any time, motions be later, could to the record such supplied motions as except of the situation unanticipated exigencies might require.”
We consider the affidavit made twenty-three months after the trial the same as if it had been filed before trial, the commencement of the same it was as a though overruled matter discretion to deter mine if the sufficient to have showing arguably justified continuance, a and to determine if the of Brown rights have been the fact that the trial prejudiced by ordered the case to to consider proceed. Failure a motion for a continu ance, case, is, course, if made to the error, trial of the prior but such would not an entitle accused ato new trial person unless the is, same is The basic prejudicial. question defendant, Brown, course: did the receive a fair trial? The essence of the affidavit is that counsel had not had time to talk with his client and to interview prospective wit- nesses or to for other defendants, confer with counsel had not to his letter received addressed the warden reply about record. asking Brown’s prison The from our case of State following v. 251 Motley, S. C. 568, 164 S. E. (2d) (1968), here: equally applicable
“The motion of the for a continuance does appellant show how the refusal thereof was to him. The prejudicial does not appellant to any point specific testimony other evidence he that could have had his motion produced been granted.” cannot
We as a matter of say law that the showing made case, necessitated a continuance of the nor can we that the say of Brown rights have prejudiced. A of the record reveals Mr. reading King represented Brown well under difficult circumstances. He was not en trial, titled to a one. only fair perfect In the of the fact that riots two had light occurred it is solicitor, understandable state, acting felt case attention. trial compelled give lasted prompt *10 five alibi days. Four witnesses testified for Brown and aver- red that he was not the at witnesses him State’s swore place to be. Brown did himself not Other testify. prisoners and/or who been or guards have at about the scene the might of riot were to readily available and testify have been sub- might on short notice if it as poenaed the trial developed proceeded that their was testimony potentially helpful.
A fair trial must be each in assured defendant all time, events. At the same in whether or determining forward, not a trial must consideration must go be to the fact given that this involved twelve accused proceeding and witnesses and persons many officers many security neces the to sary orderly and of the presentation case. processing A continuance for one a joint defendant makes continuance for all necessary. has not
Appellant demonstrated on this preju appeal error dicial reason of by failure of the court to grant In continuance. connection with this we ruling consider the rule cited in 22A properly C. S. Criminal J. Law, 482 the to effect that (1961) § a continuance normally as to indicted defendants cannot be jointly granted unless in all the motion. join
Failure the court to the motion grant for a Sever anee not is a basis for a new trial. There has no demonstration of to probable prejudice appellants from the failure of the to court trials. grant The separate out arose same facts cir charges uncomplicated cumstances, in and there was no conflict inter the defenses It is that the was able to posed. facts significant keep of each of the six separate defendants. participation This is shown the fact one exonerated one of by was while the other five were not. Each charges defendant witnesses, was, course, alibi permitted present if he chose to take the permitted testify stand. evidence was in conflict the issue of whether each of the appealing in were fairly the riot. The issues defendants participated believed State’s obviously to the which presented jury, witnesses. think, contention merit,
There is no we appellants’ unconstitutionally is vague that Code 55-7.2 Section of “riot.” The it define the crime does is but riot a com is directed at statute prisoners, question term of the mon law offense in this State the meaning and, think it fair established definition we judicial well by In Connolly, State v. man. say, ordinary understood court riot as follows: 3 Rich. defined (1832), “A be tumultuous disturbance riot is defined to of their three more assembled persons peace together *11 each other mutually the intent to assist authority, own with them, who their shall anyone oppose putting against manner, in violent into a terrific and execution design v. not.” See also State object the was lawful whether Johnson, 123, 20 43 C. S. E. 988 S. (1895). v. 429 F. Abernathy Conroy,
In the case of recent fairly a contention by the court rejected CA (2d) (1970) as in crime riot defined South Carolina that the Abernathy unconstitutionally vague. was
The contention that those six defendants who pled have been should sentenced before the conduct guilty of the trial is without merit. The codefendants who not entered were called as witnesses either guilty pleas the is they the State or defense. There no that were showing their nor that they assured because of leniency plea, showing for the If it be assumed testify were reluctant appellants. the such would admis they leniency expected go evidence, to its merely of the but sibility weight. Appellants the them as witnesses had call and have not right denied as the sixth and compulsory process guaranteed by amendments of the Constitution of the fourteenth United is in There no of the claim States. showing support sentences would have affected nature of the testi- delayed of the mony defendants. We think is there much in merit contention of the State that the should have the benefit judge of all the in facts the trial before developed those sentencing who as as pled guilty, well those who were convicted.
We find no error in failure of the to exclude the courtroom the from defendants who had entered guilty riot pleas. occurred alleged among prison inmates. Those charged many witnesses who tes tified were terms. Of it serving long prison necessity, and is otherwise, not contended more than normal meas security ures had to be taken in and about the courtroom during trial. effect, Appellants that the urge, continued presence in the courtroom of defendants who pleaded increased guilty the size of the force at the security trial and resulted required in such a prejudicial impact upon destroy entitled, innocence to presumption which were they pre them from fair cluding receiving trial. impartial It true that the defendants who entered guilty pleas were not on trial and did not but testify, they were more than mere They were spectators. the riot and participants of those identity was one of the main participating ques- tions to be decided. The identification witnesses of those and the allegedly the court- participating presence room of the for that participants purpose justified. mo,re is no
There contention that measures security were *12 taken the trial than necessary or if during the con- proper, tinued in the those courtroom of who presence pleaded guilty was justified.
The record discloses no fact or to circumstance show that the size of the force maintained security about the courtroom of deprived the benefit of appellants in- of presumption nocence or in other any them from way precluded receiving a fair and trial. impartial
Other raised on questions error on assert appeal of the trial as relates to part judge the admissibility evidence, of of asking on the questions improper to the trial judge of solicitor, and the failure of the part to disregard caution the testimony exclude certain exclusion or and the admission the trial it. The of conduct of the trial judge. the discretion is left to of evidence largely be trial it must of a new way relief by In order to justify error, trial committed judge only demonstrated to an and denied the error was prejudicial but also that of eviden- to a fair trial. Some his accused person right others, while defendants, to all raised relate tiary questions one of the meritorious, only relief would warrant if defendants. be admitted should
In evidence which determining course, into con must, take or excluded the court as the as well charge sideration the nature took of the law place. violations alleged which setting inmates a prison. only by 55-7.2 can be Section violated That statute reads as follows: Corrections, or city inmate of the
“Any Department county conspires works of county jail, any public inmate to or com- other inmate to incite such riot with any shall be deemed of a other acts of violence guilty mit any be sentenced the discre- conviction shall felony upon tion of the court.” “riot” in the definition of the word
As indicated above more in- is the conduct of three or persons there involved in a do violent manner. things various improper tending that the trial erred judge failing It submitted solicitor commented that a mistrial because the grant the ap more could have lodged against charges of the solicitor and the statement ruling Such pellants. in the of what was said just must be considered light comment. Correction Officer Gardner the solicitor’s before that inmate Sturkie was beaten. Mr. Wil testified just had counsel, liams, assault objected “testimony of defense contention of Mr. It was the Williams that else.” of anyone into the riot Solicitor merged charge. the assault charge *13 could, Foard stated “I didn’t all the in I put that charges * * *” but under the It was the intent of rioting. obviously the solicitor to to submit that judge vari- proposition - ous acts of conduct other offenses to improper go make riot, a and to that up argue prove the State can various offenses in riot making State’s counsel charge. Normally, not should refer to other cases which be could prosecuted against an accused but when person, viewed overall trial, and when offense, one considers the nature of the there was no error.
Appellant that erroneously trial argues judge admitted evidence of a violent assault Robert by Pinson, an inmate who had not and was pled guilty on trial. One of the had to which State things prove was that riot took Pinson’s place. activities were a part of the riot. There is evidence Pinson, with along Floyd trial, who were It Myers were together. was acting refer Pinson and his improper activities when describing conduct those who the affray. participated Error is on the trial fail alleged judge part to instruct the ing a statement disregard by witness, State’s Gardner. The taken from following at a time when the solicitor was transcript attempting have the witness identify various accused persons: Now, what about
“Q. Floyd? “A. He’s been in and out too. of trouble Did him “Q. you know name? Excuse
“Mr. Williams: me. This is irregular. highly I I “A. You asked how him that’s how knew knew him.” did
Counsel not assert an or ask for a objection mistrial or any state ask the trial to take grounds, any action. He merley commented it was particular highly say We cannot that a irregular. ruling required. Defendant Painter alone contends he should be given a new trial because of reference the solicitor to his narcotics and addiction. possible *14 in his taken the stand and testified own After Painter had On testimony solicitor cross examined him. direct behalf the to the several he had been introduced jury through questions that he time serving his He testified was own attorney. and had been sentenced sev- for the crime armed robbery 5 year to “25 15 years, months suspended, eral previously 10 no The record on the service of years, parole.” probation as cross examination follows: reflects solicitor’s to narcotics— You have been addicted “Q. If Your Honor
“Mr. Williams: please— —for ten about “Q. years? I
“Mr. Williams: think the that’s Solicitor knows highly and it has no on this case. irregular bearing “The see Court: Overruled. Let’s what he’s to going develop. You’re a nervous
“Q. you? aren’t type person, times, At I “A. at certain am. periods I don’t mean to these you reflect “Q. questions. I’m to just trying get your personality.”
The solicitor no asked about convic- questions any drug tions. After defense counsel an interposed objection ques- tion was abandoned and another line of questions pursued. not, The not told he a was whether was addict drug no and to the was made for an instruction request judge no We find error. disregard question.
Defendant Painter also a new trial because requests the solicitor asked him “Isn’t it true that ever since there felt that down have you’ve you everybody was The State that such was you?” against argues permis sible show the the defendant and makeup personality a for the crime. it to say, motive Suffice question possibly answer, all, erroneous at is not such if as prejudicial trial. warrant new alone, defendant Myers, excepts charges
error on the of the trial part permitting him his record solicitor about question disciplinary
565 at the On examination out direct it was prison. brought Winston-Salem, Myers was a native years age, Carolina, Charleston, North stationed and Marine at South He Carolina. was a sentence of armed years serving he im- other to leave the robbery. By testimony attempted that he was to better himself and was pression trying trying to make a record so as to be released as soon good prison On cross examination the solicitor out possible. brought truth, hand, that such was not in but on the other he fact had rules drunk violated the during previous by getting June an officer. In the testi- evidence such cursing light rebut, submitted to cannot we that there was mony say *15 error. prejudicial defendant, Brown,
The error because of alleges of Warden testimony Strickland relative to a good conduct On cross examination rating. the solicitor now, asked Warden Strickland: “Of course with everything done, he has that he this wouldn’t he?” get would rating, To this counsel said “If Your Honor remains that please, to be seen.” On this counsel would this re appeal interpret mark as an and objection contends that failure to strike the answer elicited would constitute error and entitle Brown to a new trial. It is sufficient to that the comment of say coun sel did not an objection, and did not state interpose certainly any grounds objection. is in the solicitor’s of wit alleged questioning
Error ness Roland alibi who on behalf presented testimony of the defendant It is contended that Myers. the soli citor this witness questioned relative a improperly prior conviction of murder. was Objection the court interposed instructed the solicitor to This was rephrase question. done, and the error was corrected. Later on the accordingly witness said that he did not see two other beat an prisoners officer the name Kraft. The solicitor then said: “Then didn’t see it couldn’t been him if have with all you you day, was could court ruled you?” Objection interposed; it it. Thereupon instructed disregard improper mistrial, for which the denied. We judge counsel moved a a mistrial was warranted. agree the solicitor asked several ap On cross examination State any if knew reason certain why they pellants them if the testified against witnesses would have not true. The State was entitled statements made were and the de between the witness out relationship bring the discretion of the trial within fendant. Such permitted judge.
As the trial the solicitor those de asked proceeded fendants who testified to identify participants disturbance. Counsel defendants attempted no defendant could identify stipulate any participant. The solicitor refused to The did not stipulate. require think him to and we the matter was stipulate, entirely of discretion of the trial judge. question Duck, alibi Witness prisoner, gave testimony defendant, behalf Edward Greene. He admitted he for armed robbery, that was serving years that he automobile in had an Florida. guilty larceny It also out that he also sentenced for was brought escap It that the is now conviction was ing. argued escape improp to the attention of erly State brought jury. argued *16 made, that was not and that when timely objection objection was made the line of was discontinued. The evi questioning dence of all offenses effort was an to pursued obviously discredit the witness. do think mention We not that of es to one is of armed relative who and cape guilty robbery grand larceny prejudicial.
The defendant takes to Brown the exception questions the solicitor intimative of homosexual be activity tween Brown and his witnesses who alibi testi gave instance, In each as soon mony. objection as was interposed, the solicitor withdrew the now inter Objections question. to other were not raised at the trial and posed questions we find no error. accordingly that the motion for arrest of Lastly, appellants urge alternative, trial, in the new should or judgment, effect this The of argument have granted. set forth warrant is to the errors heretofore issue urge effect, of error In motion all contentions relief. the parades a basis for new before the court collectively requesting trial. nature of
The one due to very trial was an involved site where the riot occurred. the crimes and the charged, were and the defendants The record reveals that State to the evidence working given ample opportunity present a fair and defendant would have end that both the State in the record which There is nothing and trial. impartial for arrest a motion an would court granting justify no found Having prejudicial or for a new trial. judgment error, lower court conclude that the judgment we should be
Affirmed. Lewis,
Moss, C. concur. J., J., Bussey dissent JJ., Brailsford, (dissenting). Bussey, Justice error, I most of the that there was prejudicial view
Being and for for continuance dissent. The motions respectfully of the trial the sound discretion severance were addressed case, over- who, to the statement according judge, them them. hearing ruled without to his judi- discretion is an appeal “An a judge’s appeal direction conscience, exercise connotes and its valid cial result, tak- to a just conscience of the judge the reason and circumstances and the account the law particular ing action.” case, arbitrary and precludes capricious 1008. Judges p. C. S. § J. error is reversible discretion refusal exercise authority proposition
there is soundly reasoned court to for an appellate orderly it procedure proper, *17 an issue addressed to the discretion of the pass upon lower court, unless it such discretion actually has appears exercised, the correct to remand. 5A C. S. procedure being J. and Error 40. See also cases collected in Appeal p. § Error, West’s Decennial Digest, Appeal —947. were entitled to have the motions for continu- Appellants ance and severance heard the trial and there- fully after entitled to a his of same in sound timely disposition received, discretion. This have not judicial they according to the record. The merits these motions have been argued us, before but should refrain from we merits. passing upon We cannot as to Honor what conclusions His speculate might motions, he have reached had heard the let timely fully alone determine whether or not the which he conclusions have reached have constituted an abuse of dis- might would cretion. The judicial did receive the simply appellants consideration of motions which were entitled. The they to have these motions heard a substantial right right, and, case, under the facts of this its denial was reversible error.
With to four stand, of the who respect took the appellants the solicitor endeavored to force them to attack the directly veracity several State witnesses. Repeated objections this line of the solicitor were questioning by over- repeatedly ruled trial judge. Typical questions asked by the solicitor of are the appellants following: you
“Can this reason Mr. give jury any why Thomas would name one of them you there that being up morning if tearing up sign you weren’t shop there?” you “Could tell this he jury why (Mr. should Atkins) identify as one of the you who went over fence prisoners in the area where the crowbars and the hammers other and hats were objects taken?” Similar were questions at an length obvious pursued effort force the several to attack the appellants veracity several officials of who Corrections testi- Department *18 by The line of fied for the State. questioning pursued think, I in be from solicitor this cannot distinguished, respect the almost line of solici- by identical questioning pursued Hariott, 290, 385, in State v. 42 E. (2d) tor S. C. S. and which was held this to be prejudicial, Court improper on that solely convictions the cited case reversed being Warren, 126, S. E. also State v. 207 S. C. See ground. Outen, 38; v. 118 E. 175. (2d) State 237 S. C. S. (2d) other trial are While the conduct Various errors asserted. to a or exclusion of evidence have trial and admission study to the trial a be left discretion of the judge, largely me over that, objec- the record the instant case convinces statements, tion, into the trial by injected the prosecution innuendoes, intimations, matters and various questions, or no as to issue the case as any which had relevancy the asserted errors Some of witness. credibility any defendants, not. while others do Some relate all errors, raise borderline considered only ques- asserted singly, however, indicate error they strongly tions. Collectively, trial, if the warrant a new even sufficiently prejudicial on other to a new trial not entitled grounds. were appellants in detail could be served reviewing No good purpose however, discloses. Statements questions, the record what records conduct of the several at with prior dealt length as to without any regard and their witnesses appellants on credibility, or bearing had relevance any such whether of being accused One improperly appellant otherwise. they addict. While homosexual, another being dope nevertheless, entitled were, convicts, the all appellants were simply which matters trial, and irrelevant totally to a fair no had bad men their witnesses them and went picture in the trial. proper place fair not receive a did that the appellants convinced
Being below, and remand trial, I judgment would reverse defendants. a new trial as to all J.,
Brailsford, concurs.