State v. Massey ( 2020 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner,
v.
John Kenneth Massey Jr., Respondent.
Appellate Case No. 2019-000842
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from York County
Eugene C. Griffith Jr., Circuit Court Judge
Opinion No. 27981
Heard March 11, 2020 – Filed June 10, 2020
REVERSED AND REMANDED
Attorney General Alan Wilson, Senior Assistant Deputy
Attorney General Megan Harrigan Jameson, and Senior
Assistant Attorney General Mark R. Farthing, all of
Columbia; and Solicitor Kevin S. Brackett, of York, for
Petitioner.
Appellate Defender David Alexander, of Columbia, for
Respondent.
CHIEF JUSTICE BEATTY: The State indicted John Kenneth Massey Jr.
("Massey") for first-degree burglary, grand larceny, and criminal conspiracy. The
circuit court granted a defense motion to quash the indictment for first-degree
burglary on the basis the premises entered did not qualify as a dwelling. The court
of appeals affirmed. State v. Massey, 426 S.C. 90, 825 S.E.2d 717 (Ct. App. 2019).
We granted the State's petition for a writ of certiorari and now reverse and remand.
I. FACTS
This case has an unusual procedural history that dictates our result. The
indictment for first-degree burglary against Massey alleged as follows:
The Defendant, John Kenneth Massey Jr., did in
York County, South Carolina, on or about January 12,
2014, while acting in concert with another person,
willfully and unlawfully enter the dwelling of Kristopher
Callahan, when he entered without consent the outbuilding
appurtenant to and within 200 yards of the dwelling house
establishment of Kristopher Callahan, all located at
[redacted] in Rock Hill, South Carolina, without consent
and with the intent to commit the crime of larceny therein
and said entering and remaining did occur during the
nighttime hours, all in violation of Section 16-11-311,
Code of Laws of South Carolina (1976, as amended).
(Emphasis added.) Before the jury was sworn, defense counsel moved to quash the
indictment, stating, "Your Honor, the indictment that the [S]tate has provided is
correctly in line with the statute1 but I would argue is faulty with regards to the facts
of this case." (Emphasis added.)
Defense counsel asserted the State had the burden of showing the outbuilding
was both within 200 yards of and appurtenant to the victim's residence (based on
1
See S.C. Code Ann. § 16-11-311(A)(3) (2015) ("A person is guilty of burglary in
the first degree if the person enters a dwelling without consent and with intent to
commit a crime in the dwelling, and . . . the entering or remaining occurs in the
nighttime." (emphasis added)).
South Carolina's definitional statutes).2 Defense counsel maintained the building
does not qualify as a dwelling for purposes of the first-degree burglary statute
because it is not appurtenant to the residence of the burglary victim, Kristopher
Callahan ("Callahan"). Defense counsel alleged the building is not appurtenant
because it actually houses a business, so its use is not related to the residence, and it
is on a separate parcel owned by another individual, stating "[a]t least [that is] what
the county records indicate." Counsel submitted county tax records indicating the
residence is located on a parcel owned by Callahan's parents, and the building is on
a parcel owned by Callahan's uncle. The county records also show the residence and
the building share a common driveway that provides the only access to an adjacent
road.
The State opposed the motion, arguing the building is within 200 yards of and
appurtenant to the victim's residence. The State pointed out South Carolina case law
has long held that South Carolina's burglary statutes safeguard a person's right of
possession, not ownership, so ownership of the burglarized property is not required.
The State proffered the testimony of Callahan, who stated he lives with his parents
and a family friend in the residence, and a red storage building is "roughly 45/48
feet" (i.e., no more than 16 yards) from the residence. Callahan testified the home
and the storage building are both located on land once owned by his grandfather.
When Callahan's parents got married, his grandfather gave them five acres of
property to build a home. After Callahan's grandfather passed away, the land
became his mother's, but it was never formally placed in her name. Rather, the
property was simply treated as "family land" and the parties "left it in the farm
name," which Callahan stated is held by his uncle, "who lives on the other side of
[Callahan and his parents]."
2
See S.C. Code Ann. § 16-11-10 (2015) (defining "dwelling house" in cases of
burglary, arson, and other criminal offenses and stating "any house, outhouse,
apartment, building, erection, shed or box in which there sleeps a proprietor, tenant,
watchman, clerk, laborer or person who lodges there with a view to the protection
of property shall be deemed a dwelling house, and of such a dwelling house or of
any other dwelling house all houses, outhouses, buildings, sheds and erections which
are within two hundred yards of it and are appurtenant to it or to the same
establishment of which it is an appurtenance shall be deemed parcels" (emphasis
added)); see also id. § 16-11-310(2) (stating "dwelling" for purposes of the state's
burglary statutes "means its definition found in Section 16-11-10 and also means the
living quarters of a building which is used or normally used for sleeping, living, or
lodging by a person").
Callahan also testified as to his use of the building. He explained the building
was primarily used by himself and his father, and that he treated the building like a
garage to store his personal items, such as four-wheelers (one of which was taken in
the burglary), boats, beds, and tools. He acknowledged having some work items on
the premises from a small waterproofing and grading business that he ran from the
home, meeting other workers outside the building to travel to various job sites, and
having a sign on the building. However, he stated all work was done at the job sites,
and the sign was not visible from the road. Rather, the sign was from his sponsorship
of the family friend at a rodeo event, and he kept it because it has his name on it.
Callahan testified he did not handle the taxes on the building, but he thought it was
taxed with the land on which it is situated.
The State asserted South Carolina law does not provide a precise definition of
appurtenant in this context, but there is precedent stating a building can be devoted
partially to a business use and still qualify as a dwelling. Defense counsel, in
contrast, contended the precedent cited by the State applied when a single structure
is used for both sleeping and business purposes, but the current situation is
distinguishable because the building is a separate structure from the residence.
Defense counsel argued that "practically and legally," the building is not appurtenant
to the residence because it is used for a business and there are no legal rights running
between the parcels; thus, all of the elements of a first-degree burglary offense were
not established.
At the conclusion of the arguments, the circuit court asked the parties, "Does
anybody suggest it's a factual question?" Defense counsel stated he did not believe
it was factual. The State did not respond. The circuit court took the matter under
advisement. The next morning, the circuit court asked the parties if they would like
to be heard further. The State reiterated several of its arguments, noting under South
Carolina's statutory law, if a building is within 200 yards of and appurtenant to a
dwelling, it is itself a dwelling, and court precedent holds burglary is a crime against
possession, not ownership, so it did not matter that the building "might" have been
in the name of another person. The State maintained the building is used by Callahan
to store items that do not "have anything to do with his business," so the building is
appurtenant to the residence and constitutes a dwelling for purposes of a first-degree
burglary charge.
The circuit court granted the motion to quash the indictment, finding the
building is located on a separate piece of property that is taxed separately and titled
in the name of a different owner, Callahan does not have an ownership interest in
either of the properties, and no testimony was presented that anyone was sleeping in
the building. The circuit court noted Callahan might own the land "one day, if it's
family land," but "he doesn't right now." The circuit court observed that it had
specifically asked the parties if they thought the case presented a factual question,
and stated it believed this to be "a legal issue." The circuit court thereafter stated it
did not believe the building is "appurtenant to the residence owned by the victim's
parents, factually." (Emphasis added.)
The State advised the circuit court that it wanted to place on the record that
burglary is not a crime against ownership, "not who owns plats of lands," but that it
understood the ruling and could not go forward with the trial. The circuit court noted
it was not suggesting "that this is not a burglary," based on "all the facts being
presented thus far," but a ruling that the offense was not shown to be first-degree
burglary. The circuit court opined, however, that "there would be factually plenty
to support a burglary-second indictment."
The State filed a post-trial motion under Rule 29, SCRCrimP, asserting the
circuit court did not have the authority to quash the indictment because a motion to
quash is appropriate only when there are defects apparent on the face of the
indictment. The State also incorporated its prior arguments made at the hearing. In
a written order, the circuit court summarily denied the State's motion: "The court
holds the State's arguments to be without merit. The Defendant is alleged to have
entered an out building that was used as a business on a separate piece of property
from the victim's mother's home. Therefore, the State's motion is denied." The
circuit court did not specifically address the State's challenge to a court's authority
to quash a facially valid indictment, although it noted the State had advanced this
argument in its Rule 29 motion.
The court of appeals affirmed. State v. Massey, 426 S.C. 90, 825 S.E.2d 717
(Ct. App. 2019). First, the court found the State's argument that the circuit court did
not have the authority to dismiss a facially valid indictment was raised for the first
time on appeal; therefore, any error was waived by the State and was not preserved
for review. Id. at 95–96, 825 S.E.2d at 720.
Second, the court of appeals observed that "[a]pplying the plain language of
section 16-11-10 establishes that the storage building is not a dwelling for the
purposes of our first-degree burglary statute." Id. at 96, 825 S.E.2d at 720. The
court found that "a storage building unattached to a residence and located on a
separate parcel of land is not 'usually considered as a necessary appendage of a
dwelling house.'" Id. at 96, 825 S.E.2d at 721 (quoting State v. Evans, 18 S.C. 137,
140 (1882)). Here, the court found the storage building is "separate from Victim's
dwelling" and appropriated to a distinct use, "as reflected by the commercial signage
and Victim's storage of his business tools there." Id. The court further found "there
was no evidence that the storage building was used as a dwelling or was in any way
'annexed to' or 'attached to' the home," so the circuit court did not err in quashing
the indictment. Id. (emphasis added).
The State filed a petition for a writ of certiorari posing questions
(1) challenging the circuit court's authority to quash a facially valid indictment, and
(2) asking whether the court of appeals erred in affirming the circuit court on fact-
based grounds where the pretrial evidence showed the first-degree burglary charge
was both "legally and factually appropriate." This Court granted the State's petition
solely as to the second question.
II. DISCUSSION
The State contends that, beyond the fact that the circuit court did not have the
authority to quash a facially valid indictment on sufficiency-of-the-evidence
grounds,3 the court of appeals committed an error of law in affirming the circuit
court's ruling on the merits. We agree.
The State notes defense counsel's challenge to the sufficiency of the evidence
was an improper, fact-based challenge raised before the evidentiary phase of the trial
had even begun, so the circuit court erred in the first instance by "addressing what
functionally amounted to a pre-trial directed verdict motion and proceeding to
analyze the sufficiency of the State's evidence supporting the first-degree burglary
charge." However, even if a sufficiency-of-the-evidence analysis were somehow
appropriate prior to the evidentiary phase of trial, the State asserts that, viewing the
"limited evidence and testimony" it sought to introduce during the pretrial hearing
in the light most favorable to the State,4 the evidence presented in support of the
first-degree burglary charge showed the building was well within 200 yards of and
appurtenant to Callahan's residence and thus qualified as a "dwelling," so the charge
3
Although the petition for a writ of certiorari was denied on this question, the State
reiterates that the circuit court clearly erred in quashing a facially valid indictment.
It acknowledges, however, that this argument was first raised in its Rule 29 motion
and was likely precluded by error preservation rules.
4
The State applies, by analogy, the standard used to evaluate the sufficiency of the
evidence for purposes of a directed verdict motion at trial.
was "legally and factually appropriate," contrary to the decision of the court of
appeals.
In support of its assertions, the State cites cases holding a burglary victim need
not be the owner of the dwelling burglarized, and it argues ownership of the parcels
is not determinative of whether a structure is appurtenant to a victim's residence.
See, e.g., State v. Singley, 392 S.C. 270, 274, 709 S.E.2d 603, 605 (2011) ("We have
maintained consistently for well over one hundred years that burglary is a crime
against possession and habitation, not a crime against ownership."); id. at 277, 709
S.E.2d at 606–07 ("It is instructive that our statutes do not define burglary in terms
of who owns the property, but rather in light of who possesses it."). The State also
cites cases holding certain outbuildings to be appurtenant to a victim's residence in
a variety of factual settings. See, e.g., State v. Johnson, 45 S.C. 483, 23 S.E. 619
(1896) (stating the undisputed fact that a fowl house was separated from a public
roadway does not show that it was not appurtenant, as the only question is whether
the structure is within the requisite distance and appurtenant thereto, the separation
by a roadway is immaterial); State v. Evans, 18 S.C. 137 (1882) (observing a gin-
house that was used to store cotton and to shelter stock was an appurtenance of the
dwelling that was located eighty yards away).
Massey, in contrast, argues the court of appeals properly affirmed the circuit
court's ruling quashing the indictment. Massey acknowledges "[a] person does not
have to be the titled property owner to be a victim of burglary," but asserts "the
question is whether the scope of the first-degree burglary statute includes parcels
legally separate from the victim's dwelling." Massey contends the circuit court
"properly recognized that an outbuilding cannot be appurtenant to a dwelling if it is
situated on a distinct and separate parcel owned by someone other than the victim."
(Emphasis added.) He notes none of the cases cited by the State involve the question
of separate parcels, so they are not controlling here. Massey, however, also cites no
authority directly on point, and he does not address the import of the court's
(arguably factual) finding regarding the use of the building as a business. As noted
previously, the circuit court's order on the Rule 29 motion ultimately cited the
building's separate ownership and distinct use as grounds for quashing the
indictment.
As an initial matter, we note multiple procedural irregularities have obstructed
consideration of the singular issue that should have been the focus of the motion to
quash the indictment. We will review these procedural points for the benefit of the
parties in this appeal and to provide clarity in future cases.
A motion to quash an indictment tests only the facial validity of the
indictment. See S.C. Code Ann. § 17-19-90 (2014) ("Every objection to any
indictment for any defect apparent on the face thereof shall be taken by demurrer or
on motion to quash such indictment before the jury shall be sworn and not
afterwards." (emphasis added)). A motion to quash does not test the sufficiency of
the State's evidence; the sufficiency of the evidence can properly be challenged only
by a motion for a directed verdict following the State's presentation of its case at
trial. See generally Gibson v. United States, 244 F.2d 32, 34 (4th Cir. 1957) (stating
there is "no doubt" that the only question to be addressed in a pretrial challenge to
an indictment is "not whether it was supported by the facts of the case, but whether
it sufficiently charged a crime"); Evans, 18 S.C. at 138 (stating the question
regarding the adequacy of the indictment "is not as to the facts proved, but as to the
sufficiency of the allegations in the indictment").
In light of the foregoing, the only question that should have been addressed at
the pretrial hearing was whether the first-degree burglary indictment set forth the
necessary elements of the offense. See S.C. Code Ann. § 17-19-20 (2014) ("Every
indictment shall be deemed and judged sufficient and good in law which, in addition
to allegations as to time and place, as required by law, charges the crime substantially
in the language of the common law or of the statute prohibiting the crime or so
plainly that the nature of the offense charged may be easily understood and, if the
offense be a statutory offense, that the offense be alleged to be contrary to the statute
in such case made and provided."). Defense counsel effectively admitted at the
pretrial hearing that the State's indictment was facially valid when he made his
motion to quash and stated "the indictment that the [S]tate has provided is correctly
in line with the statute but . . . is faulty with regards to the facts of this case."
(Emphasis added.)
The State, however, did not contemporaneously challenge the circuit court's
authority to quash a facially valid indictment based on the sufficiency of the facts.
Rather, the discussion at the hearing devolved into an analysis of whether the
burglarized building was appurtenant to the victim's residence and qualified as a
dwelling. The State itself engaged in an evidentiary analysis in this regard, making
a proffer of testimony from the victim, all before the jury was sworn. The State did
not advance any argument regarding the circuit court's authority until it filed its Rule
29 motion. Consequently, we denied the petition for a writ of certiorari as to the
State's first question because we agreed with the court of appeals that the issue was
waived by the State and was not preserved for appellate review.5 Moreover, the
State effectively concedes in its brief to this Court that it failed to timely assert this
challenge. Thus, any issue regarding the circuit court's authority is not properly
before the Court, so we shall turn our consideration to the issue on which we granted
the State's petition.6
The State asserts that, even if a sufficiency-of-the-evidence analysis were
somehow appropriate prior to trial, viewing the "limited evidence and testimony" it
sought to introduce at the pretrial hearing in the light most favorable to the State, it
showed the building was well within 200 yards of and appurtenant to Callahan's
residence and, thus, qualified as a "dwelling," so the first-degree charge was "legally
and factually appropriate."
Whether a structure is appurtenant to a dwelling is a factual question. See
Johnson, 45 S.C. at 489, 23 S.E. at 621 (stating a trial court may not "pass upon a
question of fact, to wit, whether the [burglarized structure] was an appurtenance to
the dwelling house"). The circuit court specifically asked the parties whether they
believed this to be a factual issue and, hearing a response only from defense counsel,
the court indicated it believed the issue to be legal. Further adding to the uncertainty,
however, the circuit court proceeded to rule (ostensibly as a matter of law) that the
building was not a dwelling for purposes of a first-degree burglary charge, but then
found the building was not "appurtenant to the residence owned by the victim's
parents, factually," based on the evidence presented "thus far." (Emphasis added.)
In our view, this dichotomy in the court's characterization developed because
the General Assembly, while defining other related terms, has not defined
"appurtenant" as used in section 16-11-10, and the parties offered varying opinions
as to its meaning, but they also engaged in arguments regarding the use of the
5
Although the issue regarding the circuit court's authority was not raised for the first
time on appeal, as stated by the court of appeals, but in the State's Rule 29 motion,
we agree that the issue was untimely asserted.
6
The State acknowledged at oral argument that "authority" in this context does not
implicate the circuit court's subject matter jurisdiction. See State v. Gentry, 363 S.C.
93, 101, 610 S.E.2d 494, 499 (2005) (observing subject matter jurisdiction and the
sufficiency of an indictment are two distinct concepts, as subject matter jurisdiction
is the power of a court to hear and determine cases of the general class to which the
proceedings in question belong, and "[c]ircuit courts obviously have subject matter
jurisdiction to try criminal matters").
building, its location, and its ownership, all of which are questions of fact. Compare
Hopper v. Terry Hunt Constr., 383 S.C. 310, 314, 680 S.E.2d 1, 3 (2009) (stating
the interpretation of a statute presents a question of law) with Singley, 392 S.C. at
278, 709 S.E.2d at 607 (stating whether a person has a "possessory interest in the
dwelling burglarized is highly factual") and Johnson, 45 S.C. at 489, 23 S.E. at 621
(stating whether a structure is appurtenant is a question of fact).
While the definition of the statutory term "appurtenant" might present purely
a question of law, the parties and the courts below have cited no authority directly
on point, and we find whether a particular structure is appurtenant to a dwelling is
inextricably intertwined with the facts of the case. Consequently, in this unique
procedural posture, this case presents a mixed question of law and fact. See Boggero
v. S.C. Dep't of Revenue, 414 S.C. 277, 280, 777 S.E.2d 842, 843 (Ct. App. 2015)
(stating "[c]ertain situations involve a mixed question of law and fact"; "[s]tatutory
interpretation is a question of law," but "whether the facts of a case were correctly
applied to a statute is a question of fact, subject to the substantial evidence standard"
(second alteration in original) (citations omitted)).
The circuit court issued a ruling predicated on limited facts elicited during a
pretrial hearing, and then attempted to address what appears to be a novel issue of
law using those limited facts. The State asserts the result was not unlike a ruling on
a directed verdict, so it asks this Court to apply the standard for reviewing a directed
verdict by analogy and to hold there was sufficient evidence—viewed in the light
most favorable to the State—to support the indictment "legally and factually." Cf.
State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006) ("A defendant is
entitled to a directed verdict when the [S]tate fails to produce evidence of the offense
charged. When reviewing a denial of a directed verdict, this Court views the
evidence and all reasonable inferences in the light most favorable to the [S]tate.").
This Court may pronounce the law without deference to the circuit court. See
S.C. Prop. & Cas. Ins. Guar. Ass'n v. Brock, 410 S.C. 361, 365, 764 S.E.2d 920, 922
(2014) (stating, in a case involving "solely a question of statutory interpretation,"
that "[q]uestions of statutory interpretation are questions of law, which we are free
to decide without any deference to the court below."). However, this case does not
involve solely a question of law, as any definition of appurtenant must be applied to
the facts of the case to determine if a first-degree burglary charge is appropriate.
Because this case involves a mixed question of law and fact, those facts will
necessarily inform this Court's analysis. We cannot adequately analyze a novel
question of law based on evidence that a party might have introduced at trial or
consider whether the evidence supported a charge of first-degree burglary on an
incomplete record. See generally Chestnut v. AVX Corp., 413 S.C. 224, 228, 776
S.E.2d 82, 84 (2015) ("The creation of a factual record will allow us
to decide whether to adopt a 'no stigma damages rule[';] an 'all stigma damages
rule[';] or a modified rule."); Farmer v. CAGC Ins. Co., 424 S.C. 579, 588, 819
S.E.2d 142, 147 (Ct. App. 2018) ("As we have noted, a voluntarily dissolved
business trust's amenability to suit may be a novel issue, which should not
be decided on a motion to dismiss when further facts might add form and
structure. As T.S. Eliot said: it is easy to carve a goose when there are no bones."
(citation omitted)).
Although Massey asserts in his brief that, as a matter of law, the building "was
not appurtenant to the dwelling because it was located on a different parcel of land
owned by someone other than the victim," the fact that the parcel was not owned by
Callahan is not determinative. See Singley, 392 S.C. at 274, 709 S.E.2d at 605
(stating "burglary is a crime against possession and habitation, not a crime against
ownership"). Further, we disagree with Massey to the extent he more narrowly
argues the case should be decided as a matter of law because the evidence that creates
a question for the Court—that the outbuilding was on a legally separate parcel from
the dwelling—was undisputed.7 The separation of the parcels does not, standing
alone, decide the issue of appurtenance. Cf. Johnson, 45 S.C. at 489, 23 S.E. at 621
(stating the undisputed fact that a fowl house was separated from a dwelling by a
public roadway does not necessarily show that it was not appurtenant to a dwelling).
"Appurtenant" has multiple meanings, depending on the context and the
statutory language, so any extensive pronouncements regarding the law of burglary
should be arrived at upon due consideration of a complete record. While Massey
focuses on the import of separate parcels, it has also been recognized that
appurtenancy, a factual question, has been widely equated with use. See C.S.
Parnell, Burglary: outbuildings or the like as part of "dwelling house," 43 A.L.R. 2d
831, 834–35 (1955) (observing the curtilage concept, which requires an outbuilding
to lie within a common enclosure or wall, originated in England, and it has not met
with general approval in America; thus, while some American authorities still use a
version of this concept by relying on plats or the requirement that they be within
sight of the dwelling, "the dominant factor used in a large group of American cases
to test whether an outbuilding may be subject to burglary appears to be appurtenancy
or use"; if the outbuilding "contributes materially to the comfort and convenience of
habitation in the dwelling house, it will be considered a part of the dwelling house
7
In its Rule 29 motion, the State itself indicated the outbuilding was on a separate
parcel.
with respect to the law of burglary"); cf. Unseld v. Kentucky, 31 S.W. 263, 264 (Ky.
1910) ("The test is the use and proximity. It is no longer, as it was once thought to
be, a matter of inclosure, or fence. Nor is it ever one of title.").
Both the circuit court and the court of appeals cited the alleged use of the
building as a business (which Callahan disputed), along with separate ownership
(parcels), as factors in deciding the building was not appurtenant to the residence as
a matter of law. In our view, further development of the record as to use would
certainly inform our analysis of the definition of the term appurtenant.
We also disagree with the court of appeals to the extent its opinion can be read
to require an appurtenant structure to be physically attached to a dwelling. The court
of appeals cited the definitions of "appurtenant" and "annex" in Black's Law
Dictionary (10th ed. 2014) and combined this with an excerpt of an early decision
of this Court, Evans, 18 S.C. at 140, to reach this conclusion. However, the excerpt
in Evans was discussing the offense of common law burglary, not the statutory
offense. The physical attachment to a dwelling is not a requirement under South
Carolina's current burglary law. This point can be confirmed by reference to the
statutory definition of a dwelling house in section 16-11-10. If outbuildings can be
up to 200 yards from a residence (double the length of a 100-yard football playing
field) and yet appurtenant at the same time, it is apparent that outbuildings need not
be physically attached. See S.C. Code Ann. § 16-11-10 (defining dwelling house);
see also Johnson, 45 S.C. at 490, 23 S.E. at 622 (holding the relevant considerations
under the statute are whether a structure is within 200 yards of a dwelling and
appurtenant thereto and noting whether the structure is separated from the dwelling
is immaterial).
III. CONCLUSION
For all of the foregoing reasons, we conclude the court of appeals erred in
upholding the circuit court's quashing of the indictment for first-degree burglary.
Accordingly, we reverse the decision of the court of appeals and remand the matter
to the circuit court for further proceedings.
REVERSED AND REMANDED.
KITTREDGE, HEARN, FEW and JAMES, JJ., concur.