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THE STATE v. GREGG

October 30, 1956

THE STATE, RESPONDENT,
v.
DAVID F. GREGG, APPELLANT.



The opinion of the court was delivered by: Stukes, Chief Justice.

October 30, 1956.

Appellant was convicted of manslaughter and has appealed. The deceased was fatally stabbed during what appellant's counsel called in argument a "drunken brawl", in a roadhouse in Dillon County. There was a crowd of patrons variously estimated by the witnesses at from forty to sixty, nearly all, if not all, of whom engaged in the fighting at one time or another.

Appellant moved for continuance of the trial upon the ground of inability to procure the attendance, as a witness, of a former waitress at the roadhouse, whose then Florida or Cuba whereabouts he did not know. The granting or refusal of the motion was within the discretion of the trial judge and error in the refusal does not appear. 7 S.C. Dig., Criminal Law, Key 586, p. 504.

Motions for directed verdict and judgment n. o. v. for contended insufficiency of the evidence were properly refused. There was no eyewitness testimony to the stabbing. However, appellant admitted that he had an open knife in his hand during part of the time and there was no evidence that any other participant had a knife at any time. A witness for the State testified that he, also, was cut extensively by appellant and had to be hospitalized. There were other circumstances in evidence which pointed to the guilt of appellant. Certainly, considering the evidence most favorably for the State, as we must, it was ample to sustain the verdict. (See the decisions cited below in the disposition of the ground of appeal which is discussed last herein.)

During the cross examination of appellant the following occurred:

"Q. Mr. Gregg, I ask you whether or not on the 21st day of April, 1941, in the United States District Court in Wilmington, North Carolina, you pleaded guilty to bank robbery? A. Yes.

The Court: Before we proceed further, Mr. Foreman and Gentlemen, the testimony of a prior conviction of the defendant is admitted solely for such weight as the jury might deem proper to give it on the question of the veracity of the witness, the credibility of his testimony, and for no other purpose whatsoever. That is the only purpose for which it is admitted and the only purpose for which the jury is permitted to consider it."

And on redirect examination on the same subject, the following:

"Q. Now you stated that in '41, April, you plead guilty to bank robbery, or as an accessory, I believe it was, in Wilmington, North Carolina. A. Yes, sir.

"Q. Did you plead guilty to it as accessory? What was the circumstances of that?

"Mr. Kilgo: We object.

"The Court: The objection is sustained.

"Mr. Yarborough: Your Honor won't permit us to show any mitigating details?

"The Court: No, sir; the Supreme Court has held that the details are not admissible. The ...


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