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STATE v. LIVINGSTON

September 22, 1958

THE STATE, RESPONDENT,
v.
FRED S. LIVINGSTON, APPELLANT.



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


   September 22, 1958.
At the September, 1957 term of the Court of General Sessions for Calhoun County, appellant was found guilty of the murder of his wife and was sentenced to death. His appeal charges error on the part of the trial judge:

1. In refusing his motion for change of venue;

2. In refusing his motion for continuance;

3. In refusing to order a new trial because of alleged illegality in the drawing of the extra venire;

4. In permitting the introduction of certain testimony; and

5. In permitting the Solicitor to explain the absence of two of the State's witnesses.

The body of appellant's wife was discovered on the night of August 12, 1957, in the trunk compartment of an automobile parked near the emergency room entrance of the Orangeburg Regional Hospital. Examination revealed five bullet wounds — in head, neck, both shoulders, and left arm, — each wound indicating that the bullet had been fired from behind the victim. There were multiple fractures of the left upper arm. Appellant, apprehended in Savannah, Georgia, on August 13, was brought to Orangeburg; and on the afternoon of that day he directed certain law enforcement officers to a secluded road in the neighboring county of Calhoun, where they found blood stains, six emptly .22-caliber cartridges, and a .22-caliber rifle. On August 14 appellant signed a confession, in which, after detailing his actions from the morning of August 12 until his arrest on August 13, he stated: "Alcohol and temporary insanity must have caused this."

The motion for change of venue, upon the ground that the defendant could not obtain a fair trial in Calhoun County, was supported by affidavits of the defendant (whose residence is in Orangeburg County), his counsel (of whom one resides in Orangeburg and the other in Calhoun County), a resident of Orangeburg County, and a right-of-way agent of the State Highway Department, residing in Saluda County, who was, in August, 1957, engaged in obtaining highway rights-of-way in Calhoun County. These affiants based their conclusion upon the widespread publicity and discussion that the crime had occasioned, and the fact that the deceased had been reared in Calhoun County, where she was very popular and had wide family connections. In opposition to the motion, four residents of Calhoun County, including the sheriff, were sworn and testified that although the crime had been publicized in the press and over radio and had been widely discussed, and although they had heard unfavorable opinions expressed concerning the defendant, they believed he could obtain a fair trial in that county. In addition, the State offered affidavits of seven persons, for many years resident in Calhoun County, each of whom, after having read the newspaper accounts and heard the matter discussed by numerous residents, was of the opinion that no bias or prejudice existed against the defendant, and that he could obtain a fair and impartial trial in Calhoun County.

In his order denying the motion for new trial, the trial judge, discussing the motion for change of venue, pointed out, in addition to the comparative showing pro and con, that neither during the three days of the term that preceded the trial of this case, nor at any time during its trial, had anything occurred that might indicate that the defendant could not obtain a fair and impartial trial there. He noted also that the jurors had been placed on their voir dire and opportunity offered counsel to make inquiries in addition to those made by the court; that the questioning of the jurors developed nothing indicative of bias or prejudice against the defendant; and that of the ten peremptory challenges to which he had been entitled the defendant had used only four. The motion for change of venue was addressed to the judicial discretion of the trial judge. State v. Mouzon, 231 S.C. 655, 99 S.E.2d 672. We find no abuse of that discretion in his denial of the motion.

Upon the call of the case for trial, the defendant moved for continuance beyond the term upon the grounds urged in his motion for change of venue (which we need not discuss further), and upon the additional ground that he had not had sufficient time in which to prepare for trial.

As before stated, the crime was committed on August 12, 1957; the defendant was apprehended on August 13; and he gave a written confession on August 14. On August 14 the Solicitor applied for and obtained, ex parte, an order from the Resident Judge of the First Judicial Circuit committing the defendant "to the South Carolina State Hospital, or to such portion of the Penitentiary as has been designated as a part of said hospital pursuant to Section 32-899.10 of 1956 Supplement to the South Carolina Code, for observation and examination as to his sanity." The order further provided that the Superintendent of said hospital should, at the end of thirty days, report to the court the result of said examination. Pursuant to this order the defendant was confined in the State Penitentiary in Columbia, South Carolina, where his examination and observation by the physicians of the State Hospital began on August 16 and was completed on September 16. As the result of this examination and observation, these physicians were of the opinion that he was sane; and presumably they so reported to the court on or shortly after September 16. The September term convened on September 23; and on that day the Grand Jury returned a bill of indictment charging the defendant with murder. He was thereupon arraigned and pleaded not guilty; and his counsel then moved for a continuance upon the grounds before stated. The motion was overruled, but with leave to the defendant to renew it on September 25, the case having been set for trial on the 26th. On the afternoon of September 25 the renewed motion was argued, and overruled; and the case was ordered for trial on September 26.

The affidavit of Mr. Williams, of Orangeburg, chief counsel for the defendant, in support of the motion for continuance, was substantially as follows:

On or about September 6, defendant's stepfather, Mr. Jameson, a client of Mr. Williams, spoke to him concerning the case, but no definite arrangements for his employment were then made, Mr. Williams informing Mr. Jameson that he would be unable to devote any time to the preparation of the case until after the term of the General Sessions court for Orangeburg County, which would commence on September 9, and throughout which Mr. Williams would be engaged. (In his appendix to the transcript, Mr. Williams states that in his conversation with Mr. Jameson on or about September 6 he advised him that, since the case was to be tried in Calhoun County, the defendant should be represented by counsel from the bar of that county, and that Mr. Jameson, acting upon that advice, endeavored to employ counsel from that bar, but was unable to do so.) The Orangeburg court having adjourned on September 17, Mr. Williams immediately notified Mr. Jameson; and on September 18 Mr. Jameson conferred with Mr. Williams and employed him to represent the defendant. Mr. Williams thereupon proceeded to Columbia, and, after having conferred there with the defendant, went to St. Matthews, where he made arrangements with his co-counsel, Mr. Houser, to assist him in the defense of the case. Mr. Williams also states in his affidavit that on the occasion of his interview with Mr. Jameson on or about September 6 he felt, and so advised Mr. Jameson, that it would be improper to attempt to interview the defendant so long as he was in the custody of the authorities of the State Hospital and undergoing examination with regard to his sanity.

This aspect of the appeal has given us great concern. A motion for continuance is, of course, addressed to the sound discretion of the court. Where such motion has been based upon the contention that defendant's counsel has not had time to prepare his case, its denial by the trial court has rarely been disturbed on appeal. It is axiomatic that determination of such motions must depend upon the particular facts and circumstances of each case. In State v. Middleton, 207 S.C. 478, 36 S.E.2d 742, where counsel, appointed by the court at least eight days prior to the trial, moved for continuance upon the ground that they did not think that time sufficient for preparation of the case for trial, we held that the motion was properly denied. And in State v. ...


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