Opinion
19122
November 6, 1970.
Messrs. John W. Williams, Jr., and John W. McIntosh, of Columbia, for Appellant, cite: As to Appellant being entitled to a directed verdict of acquittal: Wigmore on Evidence 312-322, Secs. 2056, 2057; 23 C.J.S. 88-89, Sec. 810(2); 232 S.C. 223, 101 S.E.2d 289; 228 S.C. 129, 89 S.E.2d 104; 201 S.C. 387, 235 S.E.2d 244; 228 Miss. 860, 89 So.2d 846; 179 Miss. 704, 176 So. 596; 772, 103 So. 370; 137 Miss. 276, 102 So. 282; 146 Miss. 815, 112 So. 27; 205 S.C. 514, 32 S.E.2d 825; 228 S.C. 324, 89 S.E.2d 924; 232 S.C. 230, 101 S.E.2d 505; 243 S.C. 265, 133 S.E.2d 800. As to it being error not to sentence the co-Defendant before he testified for the state: 388 U.S. 14. As to it being error to permit the solicitor to cross examine the Appellant about earlier violations: 215 S.C. 166, 54 S.E.2d 559; 214 S.C. 370, 52 S.E.2d 708; 204 S.C. 374, 29 S.E.2d 488; 231 S.C. 141, 97 S.E.2d 517; 123 Vt. 439, 193 A.2d 925; 332 S.W.2d 507, 206 Tenn. 230; 98 C.J.S., Witnesses, Sec. 507. As to it being error to permit the solicitor to cross examine the Appellant about his failure to give an exculpatory statement to the investigating and/or arresting officers: 378 U.S. 478; 384 U.S. 436; 394 U.S. 324; 380 U.S. 609; 243 S.C. 238, 133 S.E.2d 320; 137 S.C. 145, 134 S.E. 885; 133 S.C. 491, 131 S.E. 603; 201 S.C. 490. As to rule that the State cannot in any way attack the character of the Defendant, unless that issue is first tendered by the Defendant: 133 S.C. 191, 131 S.E. 603; 181 S.C. 527, 188 S.E. 186; Dreher, A Guide to Evidence Law in South Carolina 3. As to it being improper for the Solicitor to make an impermissible attack upon the character of a key defense witness: 98 C.J.S. 413, Witnesses, Sec. 507. As to it being error for the trial Judge to instruct the jury that Appellant had the burden of proving his alibi beyond a reasonable doubt: 235 S.C. 11, 109 S.E.2d 716.
John W. Foard, Jr., Esq., of Columbia, for Respondent.
November 6, 1970.
The appellant Taylor and two co-defendants, Mitchell and King, were indicted for the murder of one Lorenzo Thomas. King entered a plea of guilty of accessory after the fact to murder, Mitchell pled guilty to voluntary manslaughter, and Taylor was found guilty of voluntary manslaughter by the jury and sentenced to serve twenty-four years.
Appellant was represented at the trial by retained counsel but is here represented by other counsel appointed for the purpose of appeal. The record indicates that only one of the several questions argued on appeal was actually raised upon the trial below. It is elementary that questions may not be raised for the first time on appeal.
The one question properly before us is the contention of the appellant that he was entitled to a directed verdict in that the only evidence implicating him was the uncorroborated testimony of his co-defendant Mitchell. Admittedly, the principal evidence against appellant was the testimony of the said Mitchell, but in our view there is at least some other evidence in the record tending to implicate appellant in the crime and to corroborate the testimony of Mitchell. But, even if the testimony of Mitchell be uncorroborated, there is no merit in appellant's contention. We quote the following apt language from State v. Rutledge, 232 S.C. 223, 101 S.E.2d 289:
"The first question raised is that a conviction cannot stand upon the uncorroborated testimony of an accomplice. Such is not the law in South Carolina. The weight to be given the testimony of an accomplice is for the fact finding body and if his uncorroborated evidence satisfies the jury of the defendant's guilt beyond a reasonable doubt, a conviction is warranted. State v. Green, 48 S.C. 136, 26 S.E. 234; State v. Sowell, 85 S.C. 278, 67 S.E. 316; State v. Whaley, 113 S.C. 103, 101 S.E. 568; State v. Johnson, 156 S.C. 63, 152 S.E. 825; State v. Fleming, 228 S.C. 129, 89 S.E.2d 104."
The appeal is without merit and the judgment of the lower court is accordingly,
Affirmed.