State v. Queen

Moss, Chief Justice:

John Wesley Queen and Terry Stewart Moore, the appellants herein, have appealed from their convictions in the Court of General Sessions for Barnwell County, of the offense of distributing marijuana, a controlled substance, in violation of Section 32-1510.49 of the Code, as amended. The appellants were each sentenced to imprisonment for a term of five years. The appeal raises three questions.

The first question presented is whether the trial judge was in error in denying the motion for a continuance on the ground that one of the appellants was under the influence of a narcotic drug. At the beginning of the trial a motion for a continuance was made on the ground that the appellant Moore was taking a strong narcotic drug for pain, and because thereof could not adequately participate in his defense or the defense of his co-defendant, John Queen.

This case was tried on May 28, 1974, and on the day prior to trial, counsel for the appellants submitted to the trial judge a slip from a physician indicating that the appellant Moore had been to see him regarding second and third degree burns to his left hand and was to return to the office on that day for follow-up treatment. There was nothing in this slip to indicate that the appellant Moore had been administered a narcotic drug. The trial judge then communicated with this physician and was informed by him that Moore was to come back to his office for another dressing of his burn any time on May 27, 1974, and that he did not know of any reason why it would endanger the appellant’s life or hurt him in any way to come to trial. Counsel for the appellants submitted a slip from another doctor in which it was stated that it was unknown if Moore would need skin grafts or not for his burns and that he was to return to this physician’s office on May 29 or May 30, 1974, for dressings and further examination.

The appellants state in their brief that Moore:

“. . . was taking two times the prescribed dosage of the drug and was mentally incapacitated from the effect of the drug so as to lack the capacity to meaningfully participate in his defense or in the defense of the Co-D.efendant, Queen.”

The foregoing statement is totally and wholly unsupported by any evidence in the record, including the statements from the two doctors.

The record shows that the appellant Moore fully participated in the trial, testified in his own behalf, denied the charge against him, and related his own version of what happened. There is nothing in this record to indicate that Moore lacked the capacity to participate in his own defense or in the defense of Queen.

We have held that a motion for a continuance is addressed to the discretion of the trial judge and his refusal of such motion will not be reversed unless it is shown that there was an abuse of discretion to the prejudice of the appellant. State v. Harvey, 253 S. C. 328, 170 S. E. (2d) 657. In the cases of State v. Lee, 58 S. C. 335, 36 S. E. 706; State v. Francis, 152 S. C. 17, 149 S. E. 348, 70 A. L. R. 1133; State v. Rickenbacker, 138 S. C. 24, 135 S. E. 651; State v. Whitener, 228 S. C. 244, 89 S. E. (2d) 701, and State v. Young, 243 S. C. 187, 133 S. E. (2d) 210, this Court held that there was no abuse of discretion in refusing to continue the case because of the defendant’s physical condition. Upon the record before us, we find no abuse of discretion here.

The second question presented is whether the trial judge erred “in exceeding his discretionary power and in making unrelated comments prior to the trial to the jury to the effect that in order to bring law enforcement to Barnwell County, guilty verdicts must be returned, thereby prejudicing the defendants’ right to a fair and impartial trial.” A motion for a continuance was based upon this ground.

It should be noted that the appellants charged the trial judge with making the comment that in order to bring law enforcement to Barnwell County guilty verdicts must be returned. (Emphasis added.) The trial judge, responding to this accusation, said:

“I made no such statement that anyone who is tried here should be found guilty. The statement I made was that law enforcement begins at the local level, and only that statement, that law enforcement begins at the local level, and I made it in every courtroom that I hold court in the State of South Carolina.”

We have examined with care the remarks that occurred in a colloquy between the trial judge and counsel for the appellants and conclude that the trial judge did not make the statement that guilty verdicts must be returned in order to bring law enforcement to Barnwell County, and further that these comments could not be so construed.

It is apparent to us that the comments to which the appellants objected were addressed to the grand jury at the opening of the term of court in Barnwell County, and at that time, no petit jury had been empaneled. A wide discretion is generally allowed the presiding judge in directing the attention of a grand jury to particular subjects of inquiry, or to particular offenses, or classes of offenses. However, the trial judge should confine himself to calling the grand jury’s attention to crimes generally, and should refrain from giving an inflammatory or prejudicial charge and from expressing any opinion as to the guilt or innocence of any particular person. 38 Am. Jur. (2d), Grand Jury, Section 19, Page 966.

In State v. Walker, 79 S. C. 107, 60 S. E. 309, this Court held that general instructions to a grand jury cannot constitute ground for reversing verdict of a petit jury. In State v. Owens, 79 S. C. 125, 60 S. E. 305, we held that instructions to grand jury before petit jury is empaneled, without reference to any case, and with no intent to comment on the facts of any case, cannot be urged as error on appeal from sentence on verdict of petit jury. In this connection, attention is directed to the cases of State v. Glenn, 88 S. C. 162, 70 S. E. 453; State v. Moody, 94 S. C. 26, 77 S. E. 713, and State v. Alverson, 120 S. C. 273, 113 S. E. 120.

The appellants cite the case of State v. Barker, 128 S. C. 372, 122 S. E. 494. We held in tire cited case that a vigorous criticism of petit juries in general for failing to convict in murder trials, made by the trial judge to the grand jury in the presence of the petit jury trying the defendant for murder just before the conclusion of the testimony, was reversible error. It is apparent that the rule announced in the case has no application here.

It is the duty of jurors to take the law from the court in the particular case on trial. It must be presumed that they do so. In the instant case, the trial judge instructed the jury that the appellants had entered a plea of not guilty and that they were presumed to be innocent of the charges in the indictment and that the presumption of innocence continued until the State satisfied the jury of their guilt beyond a reasonable doubt. He also instructed the jury that they were the sole judges of the facts in the case and that he was not permitted to indicate any opinion as to the weight or sufficiency of the evidence or the credibility of the witness. His specific charge was as follows:

“I am not permitted to invade your province and tell you what I think the facts of this case are; I’m not permitted to do that. And if by chance you’ve gathered any inference whatsoever from any action, saying, or ruling on my part as to what I think the facts of this case are, you’ll disregard such inference, because that was not my intention. And that means, and necessarily means, that you, and you alone, are the sole, the only judges of the facts and of the credibility, or believability, that’s what credibility means, believability of the witnesses.”

We think the trial judge was correct in refusing the motion of the appellants for a continuance upon the ground that his comments had prejudiced their rights to a fair and impartial trial.

The appellants allege that the trial judge abused his discretion in sentencing each of them to imprisonment for a term of five years.

The punishment for distribution of marijuana, first offense, is by a term of imprisonment of not more than five years or a fine of not more than $5,000, or both. Section 32-1510.49(a) (2) of the Code, as amended.

We have held that this Court has no jurisdiction to disturb, because of alleged excessiveness, a sentence which is within the limits prescribed by law. The sentence here of five years, although the maximum, was within the limits permitted by law and no abuse of discretion is shown. State v. Fogel, 256 S. C. 149, 181 S. E. (2d) 483. There is nothing in the record to indicate that the sentence was the result of partiality, prejudice, oppression, or corrupt motive.

The exceptions of the appellants are found to be without merit, and the judgment below is,

Affirmed.

Lewis and Littlejohn, JJ., concur. Bussey, J., dissents. Ness, J., disqualified.