YOUNG v. STATE

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Docket Number

19501

Attorney(S)

Edward A. Harter, Jr., Esq., of Columbia, for Appellant, cites: As to it's being error for the Court to allow the conviction of robbery to stand even though Appellant had been acquitted of the charge of larceny, the error being the offense of robbery must necessarily include larceny thus rendering the verdicts inconsistent: 77 C.J.S. Robbery Sec. 1; Sec. 2; 52A C.J.S. Larceny, Sec. 1(2). As to it's being error not to grant the Appellant a new trial, said error being that the Appellant was without the effective and adequate assistance of counsel during the trial and at the time of sentencing: 255 S.C. 198, 178 S.E.2d 142; 249 S.C. 37, 152 S.E.2d 235; 255 S.C. 427, 179 S.E.2d 619; 399 U.S. 128; 258 S.C. 369, 188 S.E.2d 850. Messrs. Daniel R. McLeod, Atty. Gen., and Emmet H. Clair, and Robert M. Ariail, Asst. Attys. Gen., of Columbia, for Respondent, cite: As to a lack of any error in the Court's submitting to the jury the possible verdicts of robbery and larceny and the jury's returning a verdict of guilty of robbery: 77 C.J.S. Robbery, Sec. 1; 248 S.C. 227 at 231, 149 S.E.2d 598; "Perkins on Criminal Law" 284 (2d ed. 1969). As to the Appellant's being represented by able and experienced counsel in a proper and competent manner throughout the trial and sentencing: 384 U.S. 436; 248 S.C. 506 at 515, 151 S.E.2d 752; 255 S.C. 359, 179 S.E.2d 21; 258 S.C. 369, 188 S.E.2d 850; 303 F.2d 507; 244 S.C. 259, 264, 136 S.E.2d 300, 303; 248 S.C. 539, 542, 151 S.E.2d 665, 666; 6 West's South Carolina Digest, Constitutional Law, Key 268.1 (6) (Cum. Supp.) (1952), and annotation, 74 A.L.R.2d 1390; 379 U.S. 443, 13 L.Ed. 408, 85 S.Ct. 564.

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Smart Summary

Factual and Procedural Background

Appellant Perry Lee Young was tried in June 1969 in the General Sessions Court for Richland County on an indictment containing two counts: robbery and grand larceny. He was found guilty of robbery and sentenced to five years' imprisonment. His initial appeal, handled by appointed counsel, was dismissed because the issues raised were not timely presented during the trial. Subsequently, appellant filed an application for post-conviction relief, which was dismissed by the lower court. This opinion arises from appellant's appeal of that dismissal.

Legal Issues Presented

Whether the jury's verdict finding appellant guilty of robbery but not specifically addressing the larceny charge was inconsistent.
Whether the alleged perjury by a State witness (officer E.H. Sinnott) warranted relief.
Whether appellant's retained trial counsel provided ineffective and inadequate representation during trial and sentencing.

Arguments of the Parties

Appellant's Arguments

The jury's verdict was inconsistent because appellant was acquitted of larceny but convicted of robbery, even though robbery necessarily includes larceny.
A State witness committed perjury, undermining the validity of the conviction.
Appellant's retained counsel failed to provide effective assistance, including failing to timely object to trial errors and making prejudicial statements at sentencing.

Respondent's Arguments

There was no error in submitting both robbery and larceny as possible verdicts to the jury and in the jury returning a guilty verdict for robbery.
Appellant was represented competently and effectively by able and experienced counsel throughout trial and sentencing.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dukes v. State, 248 S.C. 227, 149 S.E.2d 598	Definition of robbery as larceny aggravated by force or intimidation.	Used to explain that robbery necessarily includes larceny but with an additional element of force, clarifying the verdict's consistency.
State v. Young, 255 S.C. 198, 178 S.E.2d 142	Procedural bar for untimely raised issues on appeal.	Referenced to show prior dismissal of appellant's initial appeal for failure to timely raise issues.
Dixon v. State, 253 S.C. 41, 168 S.E.2d 770	Standard for review of ineffective assistance of counsel claims.	Applied to uphold the lower court's finding that appellant's counsel met constitutional standards.

Court's Reasoning and Analysis

The court analyzed the nature of the charges and the jury's verdict, emphasizing that robbery is essentially larceny with the additional element of force or intimidation. Since the indictment included both robbery and larceny, a guilty verdict for robbery necessarily implies guilt for larceny, making the verdicts not inconsistent despite no explicit finding on larceny. Regarding the alleged perjury by a State witness, the court held that contradictions in testimony affect credibility and weight, which are jury determinations, not grounds for post-conviction relief. Finally, the court reviewed the claim of ineffective assistance of counsel and found that the record supported the lower court's conclusion that appellant's retained counsel provided constitutionally adequate representation, limiting the scope of appellate review in such matters.

Holding and Implications

Judgment Affirmed.

The court upheld the conviction and sentence, rejecting appellant's claims of inconsistent verdicts, witness perjury, and ineffective assistance of counsel. The decision directly affects the parties by affirming the lower court's dismissal of post-conviction relief and does not establish new legal precedent.

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Perry Lee YOUNG, Appellant, v. The STATE of South Carolina, Respondent.

October 17, 1972.

LEWIS, Justice:

Appellant, represented at the time by retained counsel, was tried at the June 1969 term of the General Sessions Court for Richland County under an indictment containing two counts, one charging robbery and the other grand larceny. He was found guilty of robbery and sentenced to a term of five (5) years, under which he is now being held. His subsequent appeal to this Court, prosecuted by appointed counsel, was dismissed on December 3, 1970, upon the ground that none of the questions argued on appeal had been timely raised in the course of his trial in the lower court. State v. Young, 255 S.C. 198, 178 S.E.2d 142. The matter is now here on appeal from an order of the lower court dismissing appellant's subsequent application for post-conviction relief.

Appellant seeks in this proceeding either an order of acquittal or a new trial upon the grounds that (1) the verdict of the jury was inconsistent; (2) one of the State's witnesses (officer E.H. Sinnott) committed perjury; and (3) his retained counsel failed to render effective and adequate representation during the trial.

Appellant first contends that the verdict of the jury was inconsistent. The indictment charged appellant with the crimes of robbery and larceny. The charges arose out of the same facts or transaction. The jury returned a verdict of "guilty of robbery" with no specific finding as to the separate charge of larceny. Appellant now contends that a verdict of "guilty of robbery", with no mention of the separate count charging larceny, was, in effect, a finding of not guilty as to the latter charge. It is argued that such separate findings are inconsistent and the verdict of guilty as to robbery should be set aside.

Robbery is larceny from the person or immediate presence of another by violence or intimidation. Dukes v. State, 248 S.C. 227, 149 S.E.2d 598. It is basically larceny compounded or aggravated by force used in the taking of property from the person or in the presence of another. 2 Wharton Criminal Law and Procedure, Section 547. While larceny is included in the charge of robbery, a taking by violence or intimidation is not an element of the crime of larceny.

Therefore, an indictment charging larceny and robbery includes larceny as an element of both offenses; and a verdict finding appellant guilty of robbery, of necessity, carried with it a finding that he was guilty of larceny. Such a verdict was not inconsistent with a verdict of not guilty on the separate charge of larceny. The question presented to the jury was whether appellant was guilty of larceny with or without violence or intimidation, or not guilty. If larceny was committed without force, the crime was larceny. If larceny was committed with force, the crime was robbery. The verdict simply represented a finding by the jury that appellant committed larceny under circumstances of sufficient aggravation to constitute robbery. There was no inconsistency in the verdict.

The objection now raised as to the alleged contradictions in the testimony of the officer is not available to appellant as a ground for post-conviction relief. The fact that a witness might have contradicted himself was an issue affecting the weight of his testimony, not its admissibility, and was for the jury which determined appellant's guilt.

The final question concerns appellant's claim that his retained trial counsel failed to adequately and effectively represent him. He claims that his counsel failed to timely object to certain alleged trial errors so that they could be reviewed and corrected on appeal, and made prejudicial statements concerning him at the time of sentencing. We have carefully examined the record and find evidentiary support for the lower court's conclusion that the representation afforded appellant by his experienced counsel met the constitutional standards. This is the limit of our review of such findings. Dixon v. State, 253 S.C. 41, 168 S.E.2d 770.

Judgment affirmed.

MOSS, C.J., and BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur.