Opinion
13156
May 25, 1931.
Before TOWNSEND, J., Beaufort, November, 1930. Affirmed.
Clifford Phillips and another were convicted of grand larceny and the named defendant appeals.
Exceptions requested to be reported follow:
EXCEPTION IThe evidence was entirely circumstantial, and was not sufficient to point conclusively to the guilt of the accused nor to exclude any reasonable hypothesis other than the guilt of the accused, and the Court erred in not granting a new trial on motion made on that ground and in overruling the motion.
EXCEPTION IIBecause the jury was misled by the similarity of names and failure of the witnesses to differentiate between them in construing the testimony as to acts of the elder Phillips as being the acts of the younger Phillips, and the Court erred in refusing the motion for a new trial and refusing to hear argument which would have brought this to the attention of the Court.
EXCEPTION IIIBecause the Court was equally misled and caused to have a mistaken idea of identity of the persons referred to by the witnesses so as to attribute to the younger Phillips on trial acts and circumstances which had been testified to with reference to the elder Phillips, and was under that misapprehension when refusing the motion for a new trial on the first ground stated, or to hear any additional grounds.
Mr. George Beckett, for appellant, cites: To justify conviction on circumstantial evidence alone it must be inconsistent with any reasonable theory of innocence: 10 R.C.L., 1007; 40 S.C. 363; 41 L.R.A. (N.S.), — 22 Am. Dec., 767; 66 S.C. 394; 83 S.C. 438; 74 S.C. 460.
May 25, 1931. The opinion of the Court was delivered by
The defendant Clifford Phillips was tried and convicted at the November, 1930, term of the Court of General Sessions for Beaufort County, before his Honor, Judge W. H. Townsend and a jury, under an indictment charging him, jointly with Thomas Polite and Franklin Smalls, with the crime of grand larceny. It appears from the record before the Court that the defendant Franklin Smalls was not put on trial with the other parties, for the reason that he had absconded. The other party named in the indictment, Thomas Polite, was convicted along with Phillips, but he has not appealed; the defendant Phillips only has appealed. He was sentenced by the Court to serve three years' imprisonment.
In his appeal to this Court, the appellant presents three exceptions, all of which impute error to the trial Judge in overruling his motion for a new trial. In passing upon the exceptions, which will be incorporated in the report of the case, we deem it sufficient to state, after careful consideration of the record in the case, that in our opinion his Honor, the trial Judge, properly overruled appellant's motion for a new trial, and that there is no merit in the exceptions.
It is therefore the judgment of this Court that the judgment of the lower Court be, and is hereby, affirmed.
MR. CHIEF JUSTICE BLEASE, and MESSRS. JUSTICES COTHRAN, STABLER, and BONHAM concur.