State v. Bethune. &dagger

• Decision Date: 12 July 1912
• Citation: 93 S.C. 195,75 S.E. 281
• Court: South Carolina Supreme Court
• Parties: STATE . v. BETHUNE. &dagger

75 S.E. 281

(93 S.C. 195)

STATE .

v.BETHUNE. †

Supreme Court of South Carolina.

July 12, 1912.

1. Criminal Law (§ 1176^*)—Appbal—Re-vikw—Prejudice.

Renewal of a motion for a new trial because accused was denied the right to move for change of venue was not prejudicial where the facts did not establish a prima facie case calling for a change, so that, if the motion had been made in due time, the circuit court would have refused it on the showing made.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3190, 3191; Dec. Dig. § 1176.*]

2. Jury (§ 131*)—Examination—Voir Dire.

Where a juror had sworn that he was not conscious of any prejudice or bias for or against accused, it was not an improper exercise of the

court's discretion to sustain an objection to the further question whether the juror would be influenced by the fact that accused was a negro, though he had exhausted his peremptory challenges.

[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.*]

3. Criminal Law (§ 1152*)—Appeal—Examination op Juror.

After the statutory questions have been asked of a juror and answered, any further examination on the juror's voir dire is within the discretion of the trial judge, the exercise of which will be reviewed only for abuse thereof.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3053-3057; Dec. Dig. § 1152.*]

4. Criminal Law (§ 920*)—New Trial-Grounds—Incapacity of Attorney.

That the attorney for accused was mentally unbalanced during the trial, and soon thereafter was carried to a sanitarium for treatment, was not ground for a new trial where it did not appear that he did or left undone anything which would have affected the result.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2202-2205; Dec. Dig. § 920.*]

5. Criminal Law (§ 913*)—Public Prejudice—Verdict—Vacation.

Since mere existence of a strong public prejudice against accused is not necessarily ground for change of venue, the existence of such prejudice does not warrant the setting aside of a conviction unless it appears that the verdict was influenced thereby.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2137-2145; Dec. Dig. § 913.*]

6. Criminal Law (§ 1163*)—Conviction-Verdict—Prejudice—Burden of Proof.

The burden of proving that a conviction was influenced by public prejudice is on accused; the presumption being that such was not the case, but that the trial judge performed his duty to see that accused had a fair and impartial trial.

[Ed. Note.—For other cases, see Criminal law, Cent. Dig. §§ 3090-3099; Dec. Dig. § 1163.*]

7. Criminal Law (§ 1156*)—New Trial— Newly Discovered Evidence.

A motion for a new trial for newly discovered evidence is addressed to the trial court's discretion, the exercise of which will not be reviewed unless it appears to have been abused or controlled by some error of law.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. § 1156.*]

Appeal from General Sessions Circuit Court of Clarendon County.

"To be officially reported."

Willie Bethune was convicted of murder, and from an order denying his motion for new trial for newly discovered evidence, he appeals. Affirmed.

J. H. Clifton, for appellant.

P. H. Stoll, Sol., for the State.

HYDRICK, J. At the June term, 1909, of the court of general sessions for Clarendon county, defendant was convicted of murder and sentenced to death. On appeal, his conviction was sustained. 86 S. C. 143, 67 S. E. 466. A petition for rehearing was presented, one of the grounds being that, since his conviction, defendant had become insane. The petition was dismissed without prejudice to defendant to plead his insanity, when called upon to say why a new day for execution of the sentence should not be assigned. 86 S. C. 154, 67 S. E. 466. At the June term, 1910, when so called upon, he pleaded that he was insane. Upon that issue, a trial by jury was had, and the verdict was that he was sane. On appeal, that judgment was affirmed, and the case was remanded for the purpose of having another day assigned for execution of the sentence. 88 S. C. 401, 71 S. E. 29. This was done at the June term, 1911. Thereafter, on motion of defendant, execution of the sentence was stayed in order that he might make a motion for a new trial on the ground of after-discovered evidence, and on the ground that he had not had such fair and impartial trial as is guaranteed by the Constitution. That motion was heard at the September term, 1911, and refused, and, from the order refusing it, this appeal was taken.

The murder of which defendant stands convicted was committed February 21, 1909. Soon after the defendant was arrested, the sheriff received information that a mob was being organized to lynch him, and, by order of the Governor, he was carried to the state penitentiary for safe-keeping, and was kept there until he was carried back for trial at the next succeeding term of court in June. He was arraigned on Wednesday, June 9th, and his trial was set for and had on Saturday, the 12th, which was the last day of the court.

Unusual interest on the part of the public was taken in the trial, and there was considerable feeling of resentment and indignation against the defendant, which was manifested by threats on the part of the friends and relatives of the deceased that, if he were convicted of anything less than murder, he would be lynched. These threats were brought to the attention of the presiding judge, who caused 10 or 12 extra deputies to be sworn in to preserve order and protect the prisoner. During the trial, the courthouse was crowded to standing room. The space within the bar was filled, and some of the audience were allowed to sit on the steps leading to the judge's bench.

At one time—just when it does not appear —the prisoner's attorney had been mentally unbalanced and had been in a sanitarium for treatment; but, for some time immediately before the trial, he had been attending to his business, and was employed by the prisoner's stepfather to defend him. The solicitor admits in the "case" that he was unbalanced during the trial, and that he remained so until after the trial on circuit of the issue as to the prisoner's sanity. Soon after that trial, he was carried to a sanitari um for treatment, and has not since participated in the defense.

Notwithstanding some of the points raised on this appeal were considered and decided on the first appeal, we have, in favorem vita;, at the earnest request of appellant's attorney, whose services in behalf of appellant are entirely gratuitous, carefully reconsidered them; but we find no reason to change or modify the previous decision.

The first of these contentions is that, under the circumstances, the appellant was denied the right to move for a change of venue. In addition to the ground upon which this point was decided on the first appeal, we may say that the facts made to appear on that appeal and also on this do not make a prima facie case calling for a change of venue. Therefore, if the question were an open one, and if the motion had been made in due time, the circuit court would have refused it on the showing made. Hence appellant was not prejudiced by the failure to make the motion. And certainly where the failure to make such motion was due to no error on the part of the court, at least a prima facie case, entitling appellant to a change of venue, should be made before this court would be warranted in reversing the judgment.

We notice next the ground that appellant's attorney was not allowed to ask a juror, on his voir dire, whether he would be influenced, in passing on the evidence, by the fact that defendant is a negro. Mr. Justice Woods, in concurring in the opinion of Mr. Chief Justice Jones on the first appeal stated that, if it had appeared that defendant had exhausted his peremptory challenges, he would have been inclined to sustain the exception to the ruling of the circuit court on that point. It now appears that the prisoner had exhausted his peremptory challenges. Notwithstanding that fact and the great weight to which the intimation of the learned justice (who did not sit at the hearing of this appeal) is entitled, after careful consideration, we are constrained to adhere to the previous decision. The juror had already sworn that he was not conscious of any prejudice or bias for or against the prisoner. Therefore his answer to the proposed question if he had been allowed to answer must have been in the negative.

After the statutory questions have been asked and answered, any further examination...