Bailey v. MacDougall, 18420

• Decision Date: 10 November 1965
• Docket Number: No. 18420,18420
• Citation: 247 S.C. 1,145 S.E.2d 425
• Court: South Carolina Supreme Court
• Parties: Ray S. BAILEY, Respondent, v. Ellis MacDOUGALL, Director of the Department of Corrections for The State of South Carollina, Appellant.

Page 425

145 S.E.2d 425

247 S.C. 1

Ray S. BAILEY, Respondent, v. Ellis MacDOUGALL, Director of the Department of Corrections for The State of South Carollina, Appellant.

No. 18420.

Supreme Court of South Carolina.

Nov. 10, 1965.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Edward B. Latimer, Columbia, Solicitor B. O. Thomason, Jr., Greenville, for appellant.

Betty McBride Sloan, Columbia, for respondent.

MOSS, Justice.

This record shows that on May 1, 1932, A. B. Hunt, a police officer of the City of Greenville, South Carolina, was shot and killed on a well lighted street in said city while he was attempting to prevent a robbery. Thereafter, on May 5, 1932, a warrant was issued by a Magistrate of Greenville County charging Ray Bailey, the respondent herein, with the murder of said Hunt. The Governor of South Carolina duly made requisition upon the Governor of North Carolina and, on May 9, 1932, the Governor of North Carolina duly issued a warrant of extradition requiring the arrest of Bailey. He was arrested on June 7, 1932, and thereafter applied to the Superior Court of Jackson County, North Carolina, for a Writ of Habeas Corpus alleging the illegality of custody in that he was charged with the murder of A. B. Hunt on May 1, 1932, when, at which time he was in the State of North Carolina and was not in the State of South Carolina. A return to the writ was duly made asserting that Bailey was lawfully in custody upon the aforesaid warrant. The case came on to be heard before a Judge of the Superior Court of North Carolina and, after hearing numerous witnesses and receiving a number of affidavits, the trial judge found that Bailey was not a fugitive from justice from the State of South Carolina and was not present at the time of the commission of the alleged crime at Greenville, South Carolina, and directed his release from custody. From the aforesaid judgment, an appeal was taken on behalf of the State of South Carolina to the Supreme Court of North Carolina and a writ of certiorari issued to bring up the record. The judgment of the lower Court was affirmed. Ex Parte Bailey, 203 N.C. 362, 166 S.E. 165.

The State of South Carolina applied to and was granted by the Supreme Court of the United States a writ of certiorari to review the judgment of the Supreme Court of North Carolina, which affirmed the judgment of the Superior Court of Jackson County, North Carolina. The United States Supreme Court reversed the judgment of the Supreme Court of North Carolina which had affirmed the lower Court, holding that one whose extradition is sought cannot be released from custody on habeas corpus unless his absence from the demanding State, when the alleged offense was committed, is established beyond reasonable doubt; and this requirement is not met where there is merely a conflict of evidence. The cause was remanded to the Supreme Court of North Carolina for further proceedings. State of South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292.

Thereafter, in 1935, Bailey was arrested in Gainesville, Georgia, and brought to Greenville, South Carolina, for trial upon an indictment charging him with the murder of A. B. Hunt; the said indictment having been returned by the Grand Jury of Greenville County on August 25, 1932.

The record shows that Bailey employed an outstanding, capable and experienced lawyer of the Greenville Bar to represent him. This attorney is of the highest integrity and honesty and always gives a client his complete loyalty and serves him in good faith to the best of his ability.

The case against the respondent was called for trial in the General Sessions Court for Greenville County on January 13, 1936. Upon his arraignment, the respondent entered a plea of not guilty. Thereafter, the Solicitor and the retained counsel of the respondent entered into negotiations concerning a possible guilty plea. Pursuant thereto it was agreed that the respondent would withdraw his plea of not guilty and enter a plea of guilty of murder with recommendation to the mercy of the Court. A jury was impaneled and the agreement which had been reached was carried into effect by the verdict of said jury. The respondent was sentenced to imprisonment in the State Penitentiary for the term of his whole lifetime.

It appears from the record that during the negotiations concerning a possible guilty plea that the Solicitor and the Chief of Police of the City of Greenville signed a statement, dated January 13, 1936, and such was delivered to counsel for the respondent, reading as follows:

'This will confirm our conversation that in the event that Ray Bailey enters a plea of guilty with recommendation to mercy in the case now pending against him in the General Sessions Court for Greenville County, that I will, knowing the facts of the case and the circumstances surrounding same, after the said Ray Bailey has served for a period not exceeding ten years, recommend to the Board of Pardons or Governor a pardon or parole.'

The respondent with the aid of retained counsel, other than his original counsel, on May 4, 1964, petitioned the Court of Common Pleas for Richland County for a writ of habeas corpus, alleging that his detention and restraint under the aforesaid sentence was unlawful and in violation of his constitutional rights under both the State and Federal Constitutions, asserting (a) denial of due process of law; (b) that his guilty plea was induced by the written promise and agreement hereinbefore set forth, that if he would plead guilty he would only serve ten years and possibly less, and would be aided in securing a parole; (c) that being only twenty-five years of age, with no previous record and no experience with the law, signed the agreement believing and being led to believe that the State was bound by the aforesaid agreement; and (d) that the voluntary nature of his guilty plea was destroyed by the acts herein recited, thereby depriving him of his rights guaranteed by Art. I, Sec. 5 and Sec. 18 of the 1895 Constitution of this State, and of the Fifth and Fourteenth Amendments of the Constitution of the United States. The State, by way of return to the aforesaid petition, alleged that the respondent was confined in the South Carolina State Penitentiary pursuant to a sentence of life imprisonment imposed upon him on January 13, 1936, in the Court of General Sessions for Greenville County, South Carolina, which followed a plea of guilty to the charge of murder with recommendation to the mercy of the Court. The other allegations of the petition were denied.

A full hearing on the issue made by the respondent's petition and the return of the State was had before the Honorable John Grimball, Resident Judge of the Fifth Judicial Circuit. Thereafter, by order of July 29, 1964, Judge Grimball set aside the guilty plea and the sentence imposed pursuant thereto on the grounds that the respondent's guilty plea was induced by the agreement heretofore set out, that he understood that he would only serve ten years and possibly less, that the Solicitor would aid in his parole, that he was led to believe that the State was bound by the Solicitor's actions, and that these acts destroyed the voluntary nature of the guilty plea. The trial Judge further held that the respondent was not entitled to his absolute release and remanded this case to the General Sessions Court for a new trial. He permitted the respondent to be released from custody provided he posted a bond in the amount of Ten Thousand Dollars, to be approved by the Clerk of the Court of Greenville County. The State has appealed from the aforesaid order.

The issue here is whether the agreement by the Solicitor and the Chief of Police to recommend to the Board of Pardons or Governor a pardon or parole after the respondent had served for a period of not exceeding ten years destroyed the voluntary nature of his guilty plea.

The person seeking relief by a writ of habeas corpus has the burden of sustaining the allegations of his petition by a preponderance of the evidence. Shelton v. State, 239 S.C. 535, 123 S.E.2d 867; Moore v. State, 241 S.C. 279, 128 S.E.2d 109.

The respondent testified that he was not guilty of the crime charged against him in the indictment and that he wasn't in Greenville, South Carolina, at the time the alleged crime was committed. The question of the guilt or innocence of the respondent is not an issue in a habeas corpus proceeding. Medlock v. Spearman, 185 S.C. 296, 194 S.E. 21; Wyatt v. State, 243 S.C. 197, 201, 133 S.E.2d 120, and Tillman v. State, 244 S.C. 259, 136 S.E.2d 300. Likewise, habeas corpus is not the proper proceeding to try the question of alibi. 39 C.J.S. Habeas Corpus § 22, page 473.

A plea of guilty is a confession of guilt made in a formal manner and is equivalent to and as binding as a conviction after a trial on the merits. It has the same effect in law as a verdict of guilty and authorizes the imposition of the punishment prescribed by law. A plea of guilty must be freely and understandingly made. A plea of guilty, if induced by promises which deprive it of the character of a voluntary act, is void and should be set aside.

We come now to consider whether the respondent voluntarily and understandingly entered a plea of guilty to murder with a recommendation to the mercy of the Court or whether his plea was induced by promises which destroyed the voluntary character of such.

It is admitted that the respondent never had any conversation with the Solicitor or any law enforcement officer concerning the entry of his plea. According to the record before us, the only persons who discussed this matter with the respondent were his brother, C. M. Bailey, and his employed attorney. This attorney was called by the respondent as a witness. He testified that he was employed by C. M. Bailey, a brother, to represent the respondent. This attorney testified that in the preparation of the defense of the respondent, he...