*1 90 Thоmas, STATE, Respondent, v. Atlas KEY and Robert Tobias Appellants.
(180 (2d) 888) E.S. Lewis, Richard C. and David Lyle, Messrs. CleveA. Lytle, Appellants, for *2 McLeod, Gen.,
Messrs. Daniel R. Hubbard Mc-W. Atty. Donald, Jr., Gen., Columbia, and Mike S. Asst. of Atty. Solicitor, Union, of Jolly, Esq., Respondent, for 29, 1971. April
Littlejohn, Justice: of Atlas and Robert Tobiаs Thomas were convicted Key armed 1969 term of the Court of General robbery July at A Sessions for York motion for a new trial was County. overruled. have to this error They court appealed alleging on the of the trial in the motion. part judge denying error the two
By appellants appropriate exceptions allege in on the certain testimony part admitting mother, in defendant Key’s Bennett Alvin Dean concerning an answer “slowly, Bennett to repeat witness directing in to exclude distinсtly”, failing portion clearly, the solicitor’s to the jury. argument 9, men robbed the 1967,
On two nighttime, April Both were Store Handy Pantry wearing stockings $313. each had a In the store at the time pistol. over face and Walters, Leon were assistant Darrell Alvin Dean manаger Kiker, Bennett and Mrs. all of whom testified for the Kay store; at The State the trial. masked gunmen departed there can be an armed robbery no but that took question issue in the trial of case was the place. principal matter of identity. еxamination
While Bennett was direct testifying had solicitor asked about conversation which he with *3 mother of the defendant Over of counsel he Key. objection was mother told him that Key’s to permitted testify “Atlas said he was to take half of Rock Hill with him going if he was sent off it be for me to leave just and would best town on The record reflects told the Sunday.” that the judge witness to the answer and and dis- repeat “slowly, clearly he had tinctly.” Bennett also testified that received some other calls. telеphone
Both error reason of the by appellants argue prejudicial fact to that the asked the witness answer slowly, and At most the relate clearly objections could distinctly. the case to only against Key.
The next error conсerns When the jury alleged argument. case was before the words of the so- exact argued jury recorded, is licitor were not but the following part record: down
“The of counsel was not taken Reporter: Argument me, however, Mr. Solicitor’s by Lytle objected during to the a statement made by argument jury concerning he nickel for to the effect that wouldn’t Solicitor give plug
93 Bennett’s life the defendants turned loose. if were The objec- tion was overruled the Court.”
We that the erred in Bennett agree court permitting mother, about his testify conversation with and Key’s per- the solicitor’s to the We are not con- mitting argument jury. vinced that the direction to the witness to judge’s testify error; slowly, clearly and but for all distinctly the record shows, his instructions been may have because the wit- given ness was testifying rapidly indistinctly.
We affirm because we are not convinced that the errors the defendants. is prejudiced It well settled in this State that “where conclusively proven by competent evidence and nо rational conclusion can be reached other than the defendants are guilty, conviction judgment should be set aside because of insubstantial errors not Robinson, the result. State affecting 140, v. 238 S. C. 119 S. E. 328, 671.” State v. (2d) Harvey, S. C. 170 S. E. (2d) (1969).
“Whether the error in a case shall be given as regarded harmless on often appeal may on the depend circumstances of the particular case rather than on any law, definite rules of character materiality prejudicial error alleged determinеd in its relation being to the entire case. Accord- courts ingly, appellate are disposed harmless regard errors where it from the record that intervening appears conviction merits; correct on clealy where apрears the whole case done; that substantial has been where justice *4 trial; the record shows accused a the rec- had fair where ord the error could not have shows that conclusively alleged resulted in where whole the guilt from the record prejudice; established; no other of accused to be where appears clearly evidence, where verdict could have been returned on the and reached if the conviction was and would have been just So, аlso, said it can be errors had not been committed. where of could not rea- from the record that errors complained trial, re- of the be they may have affected the result sonably harmless, where proof as and this particularly gаrded 24A S. Criminal Law 1887 accused’s is clear.” C. § J. (1962). as the of evidence as well admissibility argument are within the discretion
of counsel to the jury largely it would that the of the trial While judge. appear to the to the evidence and the objection argument objection must, sustained, we consider the should have been we issue, in mind this court did hear bear not prejudice what took while the trial did. The trial place judge judge sees is and hears is said. He is what done what cognizant all the circumstances and is a bеtter of the surrounding judge latitude that to be allowed counsel in the submission of ought and in in evidence to counsel case arguments particular than is is in this court. It cases of abuse only of discretion which result that this court will intervene and prejudice C., a new State v. E. trial. N. 179 S. grant Thompson, (2d) 315, 650, v. State N. C. 86 S. E. Barefoot, (2d) 424.
We held wishes to have that where counsel object to to of his argument adversary jury pre- serve the for objection procedure appeal, proper is record of the matter to have the court make a reporter It be if is objected to. would helpful enough argument recorded to indicate context in which the contested state- ments are made. In this case we do not have before us the soliсitor, heard full but the trial exact statement judge what which was said and heard the preceded argument in better and what followed it. He was alleged impropriety lack is this court. or than position prejudice We for the of determin- now review thе evidence purpose con- whether and more ing specifically identity, guilt, such as to eliminate evidence clusively proved by competent trial. The of the evidence of a new necessity adequacy The defendants eleсted to convict not challenged. Our review and did not submit evidence. testify any *5 therefore of confined to the submitted necessity evidence the State.
Witness Bennett was in store when occur- robbery red. He been had with some ten or twelve acquainted Key Thomas, did not years. He know the defendant whom he described as and short. being heavyset
About month after the Bennett testified that he holdup saw the Dixie in Rock Hill. He at Tavern Key quoted Key as “wasn’t in the here asking you Handy Pantry awhile back whеn “Yeah, robbed?” He I got replied, believe I while was in recognized you you were one you there — that had a big your face.” He said gun hiding that Key and told “just me to tell it.” laughed nobody about Bennett further testified: time, At
“Q. that I’ll ask did this, you you recognize Atlas Key оne of the men in being had seen you on the Handy Pantry night alleged? Yes,
“A. sir. And
“Q. you are positive your identification?
“A. Yes, sir.
“Q. any your Is there in doubt mind? No,
“A. sir.” Bennett admitted he had some with difficulty Key He testified previously. that he “realized that it him when he I kept hiding just but didn’t want to say nothing about it.” The of the told night he officers robbery police he did not know who it was. he did Apparently not want get involved. When Bennett and were discussing Key Tavern, matter at the Dixie did not admit Key participating in the robbery, but did not deny it.
Darrell Leon Walters was assistant manager charge He store. testified relative to the said robbery he went after the defendants were jail arrested. Pie had heard Thomas talk night robbery and identified him at his Both one jail by voice. he and was unusual. Relative testified that the voice
other witness Walters testified: thereto *6 n this, is that an or is that opinion I’ll ask you Alright. “Q.
. identification? a positive Burrell, I I said I cell Lt. told
“A. When came out the T man that voice’ I said ‘I’m that’s positive know I didn’t know who was in store that even my night’, though the man was.” was build the man in jail
He further testified that the of the voice in the about the the man with unusual same as store. the the
Mrs. in the stоre of Kay Kiker was also night told the court the some She about robbery, doing shopping. Thomas. She and identified the defendant was robbery ques- the solicitor: tioned of since? Have seen either one them you
“Q: “A. Yes. in the ? And who ? Do see that courtroom you person
“Q. “A. Yes. ma’m? him out please, Would you point
“Q. blue of one with the “A. He is man beside the the sitting shirt, the one in coat there. The one in the coat?
“Q. Yes,
“A. on the back row. Back row?
“Q.
“A. Yes. in your I is man who held gun if this you ask
“Q. face? I life on it.” my
“A. would stake identification of Thomas was positive. Her Hill D. Rock city police department Lt. L. Burrell knоwn both of He said that he had testified for the State. he saw them defendants for several years; together them force occasions. He testified that police kept many the course their investi- under constant surveillance during After were tоgether. they and found them gation, constantly arrested he Walters, went the cell with Mr. and testified that'Walters promptly identified positively Thomas as the voice of the man who robbed having him.
As indicated hereinabove, the matter of identity real issue оnly involved the trial of the case. had before jury identifications positive of each of the defendants. Such identifications were denied. It academic that failure of the defendants to created testify no inference of them. did guilt against They not have the burden However, of proving anything. undisputed testimony is more conclusive than is in which testimony dispute, it is less difficult for this court to reason con- denial, clusively when there is no than when ac- proven an cused person truthfulness the State’s еvidence. disputes
After the verdict of was returned the guilty jury the record reflects this “at time the defendant Bo Thomas started chairs, with the throwing defendant Atlas Key joining and obscenities.” shouting
The record further reflects that the court was proceеding and that the defendants completely had to be disrupted sub- dued before order was restored the courtroom. The record further reflects that the defendant the Key castigated judge and the law enforcement officers with obscenities. The many defendants have not been dealt with as for and contempt, this deals with the armed opinion solely of charge robbery. No opinion relative to action inci- expressed appropriate dent to the conduct of the defendants after verdict was returned. It is not to comment that the inappropriate trial handled a difficult situation with skill. commendable
The judgment lower court is Affirmed. ].,
Moss, C. and J., concur. Lewis, Bussey dissent. JJ., Brailsford, :
Brailsford, (dissenting) Justice convictions, these in affirming rule invoked The salutary law, settled with which errors, trial acknowledge despite However, I that record am convinced this I am accord. in full excluding of guilt, falls short of conclusive proof far that alone, which, rule verdict, oper- other rational upon any rests Key uрon ates. of the defendant The conviction The robbery. who witnessed of one Bennett testimony and had had many years two men had known each other for their over stockings The robbers wore recurrent difficulties. he did heads, officers that and Bennett told investigating thirty It not until some either of them. was recognize Bennett later, Key, with days a conversation during identified him as Bennett reported mentally participant. later, some and the this two weeks conclusion the police arrests followed. testimony case Thomas rests against upon
two A Mrs. Kiker testified she recog- eyewitnesses. nized him one robbers he into the when “strolled courtroom” on the he trial, stran- day although had and she not seen him of the rob- ger night between and his in court. bery Thе store testi- appearance operator fied that he Thomas’ one of the voice as that of recognized when, event, some robbers after the he was taken forty days ato cell for the this jail identification. purposе attempting both
The record indicates that defendants are flagrant *8 criminals, confirmed but it furnishes no evidence competent of their of the offense recited charged except that above. While sufficient to an admittedly raise issue for the its jury, sufficiency to establish a reasonable guilt beyond doubt is plainly arguable.
Bussey, J., concurs.