State v. Fields , 264 S.C. 260 ( 1975 )

Ness, Justice:

Appellant was tried on an indictment charging him with the murder of one Marjorie Hampton on July 5, 1973, which trial resulted in a conviction of murder with a recommendation to mercy, and he was sentenced to life imprisonment. From that judgment and sentence he has appealed to this Court.

Fie first contends that the trial court abused its discretion in denying his motion for continuance so that an attorney from North Carolina could be present and actively participate during the presentation of evidence to the jury.

Generally, motions for continuance are addressed to the sound discretion of the trial judge whose denial of such motion will not be disturbed on appeal unless there is a clear showing of an abuse of discretion. 7A, South Carolina Digest, Key No. 586.

This Court held in State v. Edwards, 86 S. C. 215, 68 S. E. 524, and in State v. Lytchfield, 230 S. C. 405, 95 S. E. (2d) 857, that a motion for a continuance on the ground of the absence of leading counsel is properly denied, where defendant is duly represented by his other counsel, who in the instant case participated also in the prior trial which resulted in a mistrial. Also see 17 C. J. S. Continuances § 41, p. 419; 22A C. J. S. Criminal Law § 527, p. 225.

Appellant next asserts that he was denied his constitutional right to confront witnesses against him when the pathologist, Dr. Rutland, was not recalled for further cross examination by appellant’s chief counsel. Section 26-301 et seq. of the South Carolina Code of Laws prescribes the method by which an out-of-state witness may be made available to the court; however, in the instant case the trial judge was never requested to employ the provisions of this section. It appears, from the record, that Dr. Rut-land was present in court for two (2) days, was called as a witness and cross examined on three (3) occasions by appellant’s associate defense counsel, who after this consented to excusing Dr. Rutland, and therefore waived his right to further confront him. The witness had appeared and been cross examined by defense counsel. 21 Am. Jur. (2d), Criminal Law, § 333, p. 361; State v. Steadman, 216 S. C. 579, 59 S. E. (2d) 168; 7A, South Carolina Digest, Criminal Law, Key No. 1153(1), p. 462.

Exception seven is neither argued in his brief nor set forth in his statement and is deemed abandoned. Supreme Court Rule 8, § 2; State v. Lawrence, Filed 12/10/74.

The next exception relates to the jurisdiction of the court, appellant contending that there was no evidence that the fatal blow was struck in York County, South Carolina. The simple answer to this is § 17-454 of the South Carolina Code of Laws which provides, “when any person shall be struck — and shall die thereof beyond the limits of the State — the person so striking — shall be subject to indictment — in the county in which the — injury or ill-treatment was committed, in all respects the same as if the death had occurred in such county.” State v. Bostick, 243 S. C. 14, 131 S. E. (2d) 841; 40 Am. Jur. (2d), Homicide, § 198, p. 478. The evidence, here, was clear that the deceased was assaulted in Clover Grill, Clover, South Carolina; also, there were two (2) other witnesses, a Mrs. Hullett and Mrs. Helms, who testified that they saw the deceased being beaten in York County; finally the defendant admits striking the deceased in York County. This exception is without merit.

The appellant contends that the trial judge was in error in failing to charge manslaughter. Defense counsel was questioned by the trial judge as to whether they desired manslaughter to be charged and they informed the trial judge they did not wish it to be charged. This assignment of error is likewise without merit. State v. Epes, 209 S. C. 246, 39 S. E. (2d) 769; 7A, South Carolina Digest, Criminal Law, Key No. 824(1), 847 Cum. Supp.

Appellant next attempts to invoke the doctrine of in favorem vitae. We held in State v. Anderson, 253 S. C. 168, 169 S. E. (2d) 706, that this doctrine does not extend to cases in which a sentence of less than death is imposed.

The next exception relates to testimony relative to finding blood stains and hair in appellant’s automobile. See 7A, South Carolina Digest, Criminal Law, Key No. 1153(1), p. 462, collecting cases which hold that evidentiary matters are within the discretion of the trial judge. And in 40 C. J. S. Homicide § 201, p. 1102 it is stated: “Proof of bloodstains at or about the place where violence is alleged to have been inflicted' — -is competent.” Also in Section 215d the identical rule is said to be applicable to findings of hair as well as blood, Section 248(1) relates the principle that proof of the presence of bloodstains is evidence tending to prove the situs of the crime. State v. Brown, 101 S. C. 404, 85 S. E. 957.

The appellant next asserts error of the trial judge in failing to grant appellant’s motion for a directed verdict. This exception contravenes Supreme Court Rule 4, § 6 as it is too general to warrant consideration by this Court. City of Columbia v. Barr, 239 S. C. 395, 123 S. E. (2d) 521; 7A, South Carolina Digest, Criminal Law, Key No. 753(2).

Appellant further contends that there was no evidence of malice, which he agrees may be either express or implied; however, the testimony reveals that the appellant told the deceased, “I’m going to kill you, god damn it.” (Tr. Folio 362). Furthermore, malice may be presumed from the intentional doing of an unlawful act without just cause or excuse. State v. Fuller, 229 S. C. 439, 93 S. E. (2d) 463.

Finally appellant contends that the trial judge’s charge relating to the acceleration of the demise of a person in poor physical condition constituted a charge on the facts prohibited by the South Carolina Constitution. However, in State v. Foote, 58 S. C. 218, 36 S. E. 551 the exact exceptions to analogous instructions were overruled for reasons this Court finds impelling. Also see State v. Doe, 218 S. C. 520, 523, 63 S. E. (2d) 303; 40 C. J. S. Homicide § lid, p. 855; State v. Francis, 152 S. C. 17, 149 S. E. 348, 70 A. L. R. 1133; 100 A. L. R. (2d) 769, 780.

We have examined the entire record relating to the aforestated exceptions and do not feel that any alleged prejudicial error was committed by the trial judge. We hold that the appellant had a fair and impartial trial.

Affirmed.

Moss, C. J., and Lewis and Littlejohn, JJ., concur. Bussey, J., dissents.