McCrary v. State
| Citation | 152 S.E.2d 235,249 S.C. 14 |
| Decision Date | 04 January 1967 |
| Docket Number | No. 18590,18590 |
| Court | United States State Supreme Court of South Carolina |
| Parties | J. C. McCRARY, Appellant, v. STATE of South Carolina et al., Respondents. |
Lincoln C. Jenkins, J., Columbia, for appellant.
Daniel R. McLeod, Atty. Gen., Edward B. Latimer, Paul R. Hibbard, Asst. Attys. Gen., Columbia, for respondents.
Appeal from a circuit court order denying a writ of habeas corpus.
At the March, 1962 term of the Court of General Sessions for Greenville County appellant was charged, in one indictment, with housebreaking, safecracking and grand larceny, committed on or about January 13, 1962, at Gibbs Pharmacy; and in another indictment, with housebreaking and grand larceny, committed on or about January 13, 1962, at the place of business of Triangle Construction Company. By agreement between his counsel and counsel for the State, he was tried under both indictments at the same time. At the close of the testimony for the State appellant through his counsel announced that he would offer no testimony. The jury returned a verdict of guilty on all counts, and the trial judge thereupon sentenced appellant on the indictment first above mentioned to life imprisonment, and on the second to a concurrent term of five years. Upon his appeal to this court, in propria persona, the judgment was affirmed, State v. McCrary, 242 S.C. 506, 131 S.E.2d 687. (Opinion filed June 25, 1963).
On July 29, 1963, appellant in propria persona petitioned the Honorable Frank Eppes, Judge of the Thirteenth Judicial Circuit, for a writ of habeas corpus, alleging that his detention in the State Penitentiary was unlawful and that he was entitled to release from custody because: (a) he 'was denied due process of law'; and (b) 'the court-appointed attorney did not afford competent or good faith representation'. At the hearing before Judge Eppes, October 7, 1963, on the application for the writ, the petitioner was represented by Mr. Herman E. Cox of the Greenville Bar, who stated that, as he had advised the petitioner, the only issue raised by the petition was that the petitioner had not had the benefit of competent counsel at his trial, which issue had been disposed of in State v. McCrary, supra; but that since his client had said that he did not receive a complete record of his trial, he would ask that the court defer consideration of the matter long enough to enable him to obtain the record from the court stenographer and consider it in the light of his client's contention. The petitioner was then sworn and under examination by the Solicitor and by his counselt estified in regard to the matters before memtioned as follows: (1) That at his trial he was represented by Mr. Harley Wooten, who had been retained by petitioner's family for the purpose of having the trial postponed; that he could not obtain a postponement; that he represented petitioner during the trial, advised him not to testify or offer testimony, and argued the case before the jury; and (2) that the record that he had received from the Solicitor was not complete, evidence favorable to the petitioner having been omitted. Also present at the hearing before Judge Eppes was Mr. Wooten, a member of the Greenville Bar, who testified: that he had been engaged in the practice of law for twenty years, about one-half of his practice being on the criminal side of the court; that he had been retained to represent the petitioner and had represented him to the best of his ability throughout the trial; that the State's case was based on circumstantial evidence; and that the decision not to call witnesses for the defense was made after discussion with petitioner, who agreed with his counsel that his case would be stronger if no further evidence were offered. By his order dated February 1, 1964, Judge Eppes, reciting the two grounds of the petition for the writ, and finding from the evidence that at his trial the petitioner had been faithfully and adequately represented by retained counsel, and that petitioner's testimony had failed to convince the court either that the petitioner had been denied due process of law or that his counsel had not afforded him competent representation, denied the petition.
On January 24, 1964, a few days before Judge Eppes' decision on the petition before mentioned, appellant filed in the United States District Court for the Eastern District of South Carolina, Columbia Division, a petition for a writ of habeas corpus, which petition was by order of the Honorable J. Robert Martin, Jr., United States District Judge, dated March 3, 1964, dismissed as premature, without prejudice to the petitioner to refile, if so advised, after exhaustion of remedies available in the courts of South Carolina.
On March 25, 1964, appellant in propria persona petitioned the Court of General Sessions for Greenville County for a writ of habeas corpus, alleging as grounds therefor the same matters that had been alleged in his previous petition of July 29, 1963, and in addition thereto, among other things, that he was being detained without due process of law because: (1) the evidence against him was false and illegal; (2) he was tried on two indictments consolidated; (3) he was convicted on circumstantial evidence; (4) certain clothing used in evidence against him had been obtained without a search warrant; (5) the trial court unconstitutionally denied a continuance; (6) the trial judge had stated to the jury that it would be better if they would not recommend mercy; (7) the State had sent him a false copy of his trial proceedings for the purpose of his appeal; (8) this court had refused to order a correct trial transcript; and (9) he had been forced by the State to perfect his appeal to this court, heard in June, 1963 (State v. McCrary, supra), from a false transcript. By order dated July 2, 1964, Judge Eppes dismissed the petition, holding that the petitioner had been given a full hearing on all these matters on October 7, 1963.
By petition dated June 8, 1964, appellant sought in the United States District Court for the Eastern District of South Carolina, Columbia Division, a writ of habeas corpus, upon the grounds:
1. That the evidence was insufficient to sustain his conviction;
2. That the trial court erred in permitting him to be tried on two separate indictments;
3. That he was illegally arrested for 'investigation' of the crime for which he was ultimately convicted;
4. That some of the evidence used by the State at his trial was obtained by illegal search and seizure 5. That the State knowingly used trick and planted evidence and perjured testimony at his trial; and
6. That he was inadequately represented by counsel at his trial.
In his order on that petition, dated July 22, 1964, the Honorable J. Robert Martin, Jr., United States District Judge, held that the two contentions that had been presented to and passed upon by this court in State v. McCrary, supra, i.e., that the evidence was insufficient to sustain the conviction, and that the trial court erred in permitting the petitioner to be tried on two separate indictments at the same time, raised no federal constitutional question; that the other four grounds of the petition, i.e., those numbered 3, 4, 5 and 6 above, could not be considered by the District Court because they had not been presented to the highest State court; and that the petitioner must exhaust the remedies available to him in the courts of the State before he could seek relief in the District Court. The order further adverted to the fact that the petitioner had previously presented all of those questions to the District Court in his petition for a writ of habeas corpus in January, 1964, which had been dismissed as premature by the District Court's order of March 3, 1964, and that the petition sub judice did not allege that any action had been taken to exhaust state remedies since the order of March 3, 1964. The order of July 22, 1964, stated further that the petitioner was also asserting: that when he perfected the appeal from his conviction to the Supreme Court of South Carolina he had requested counsel and a stenographic transcript of the trial testimony; that he was denied assistance of counsel and that the transcript furnished to him was incomplete and incorrect; and that both of those points had been presented to the Supreme Court of South Carolina. The order of July 22, 1964, stated further that the aforesaid assertions of the petitioner were not supported by a statement of the facts involved, and that the record required amplification on those points before a decision could be made as to whether or not a constitutional question was involved. The order concluded by granting to the petitioner leave to proceed with the petition for a writ of habeas corpus in forma pauperis, and by requiring the respondents (the State of South Carolina and Ellis C. MacDougall, Director of the Department of Corrections) to show cause the writ should not be granted.
Under date February 19, 1965, the Honorable J. Robert Martin, Jr., United States Judge, issued a further order on the petition. It recited that the petitioner claimed: that he had appeared in person before the Supreme Court of South Carolina to argue a motion for bail pending appeal, and had pointed out to the court at that hearing that he had been furnished an incomplete and incorrect transcript of his trial for use on appeal; that he had never been furnished a correct transcript; that he had not been allowed to use the exhibits from his trial for the purposes of appeal; that by letter addressed to the Chief Justice of South Carolina he had requested that counsel be appointed to represent him on appeal, but that counsel had not been furnished him; that he had been informed by letter from the Supreme Court that if he and the Attorney General's office could not agree upon a trial transcript the matter would have to be settled by the trial court; and...
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