STATE v. LEONARD
1/7/1986
reathalyzer test read eleven one-hundredths of one percent; Harrison's blood alcohol reading was eighteen one-hundredths of one percent; and based upon the location of hair samples taken from the car, one expert witness opined that Leonard was driving at the time of the wreck.
I.
Instructions Concerning Conviction of Both Men As
Principals in the Crime of Reckless Homicide
Both appellants claim that the trial judge committed reversible error in giving the jury instructions to the effect that both could be convicted of reckless homicide. The crime of reckless homicide is set forth in Section 56-5-2910, 1976 Code of Laws of South Carolina, as follows:
When the death of any person ensues within one year
as a proximate result of injury received by the driving
of any vehicle in reckless disregard of the safety of
others, the person so operating such vehicle shall be
guilty of reckless homicide.
In conjunction with the instructions concerning Section 56-5-2910, the trial judge explained that under Section 2-7-30, the word "person" may include more than one person. Additionally, after the judge read verbatim Sections 56-5-6120 and 56-5-6110 to "aid in our [jury's] understanding
This is a restatement of the common law of this state
which deals with the subject of aiders and abetters
wherein it is said where two or more persons are present
and aiding, abetting, helping, and assisting each
other in the commission of any crime, both (sic) them
are guilty as principals. Wherein it may be said the
hand of one is the hand of all. The law does not distinguish
in such an instance where both are present and
aiding, assisting, abetting in the commission of any
crime, they are both held as principals and not as
accessories.
....
I charge you as follows: the owner or person in control
of a motor vehicle may be criminally liable for a homicide
committed in operating a vehicle not only when he
is operating it personally, but also when he procures or
permits the vehicle to be driven by another person who
is in the vehicle with him.
Leonard's objections to the charge to the jury are twofold. First, he argues that Sections 56-5-6110 and 56-5-6120 should not have been read to the jury because these code sections were not charged in the indictment and in a criminal case a defendant is entitled to be tried only on the charges in the indictment. This argument is without merit. Leonard was not tried for or convicted of the offense of aiding and abetting, but rather he was tried and convicted as a principal. Our Supreme Court has affirmed the conviction of a traffic law violator, claiming to be a mere passenger, who was not separately indicted for aiding and abetting but rather was indicted as a principal and the jury was charged on the law of principals. The court reasoned
Leonard's second argument is that the instruction led the jury to believe that if either man were guilty of reckless homicide, both had to be convicted. This argument ignores the fact that with regard to the reckless homicide count, the trial judge also advised the jury that:
or either of the defendants or both of them to be
found guilty of the offense of reckless homicide, it must
be established that not only was the conduct of the
party or parties reckless but that this conduct was a
proximate cause which caused a homicide of the victim
in this case. It is not enough that there was the tragedy
of death and neither is it enough to show that either or
both of the defe
Page 1 2 3 4 South Carolina DUI Attorneys