Pitt v. MacDougall, 18279

• Decision Date: 11 November 1964
• Docket Number: No. 18279,18279
• Court: South Carolina Supreme Court
• Parties: Bennie G. PITT, Appellant, v. Ellis C. MacDOUGALL, Director, Department of Corrections, State of South Carolina, et al., Respondents

Page 840

138 S.E.2d 840

245 S.C. 98

Bennie G. PITT, Appellant, v. Ellis C. MacDOUGALL, Director, Department of Corrections, State of South Carolina, et al., Respondents

No. 18279.

Supreme Court of South Carolina.

Nov. 11, 1964.

Harold W. Jacobs, Columbia, for appellant.

Daniel R. McLeod, Atty. Gen., Edward B. Latimer, Asst. Atty. Gen., Columbia, for respondents.

MOSS, Justice.

Bennie G. Pitt, the appellant herein, on April 9, 1961, was arrested in Charleston, South Carolina, and charged with the crime of armed robbery. He was tried and convicted upon said charge on May 30, 1961, in the Court of General Sessions for Charleston County, without the assistance of counsel, and sentenced to imprisonment for a term of fifteen years, which he is now serving in the South Carolina State Penitentiary. There was no appeal taken from the aforesaid conviction and sentence.

However, on December 16, 1961, the appellant filed a petition 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 guaranteed under both the State and Federal Constitutions. He alleged a denial of due process as a result of being tried without the benefit of counsel, and because thereof he was entitled to be released from custody. The lower Court, after a hearing, issued an order denying the relief sought. An appeal to this Court followed and such was dismissed. Pitt v. State, 240 S.C. 557, 126 S.E.2d 579. In dismissing the aforesaid appeal, we recited the following facts:

'During the period between his arrest and trial, he was confined in jail. It was admitted that, while in jail, he made a request of the law enforcement officials for permission to make a telephone call to his father, who lived in Philadelphia, Pennsylvania, for the purpose of obtaining his father's assistance in procuring counsel to represent him. This privilege was not granted. He did write to his father, but received no reply to his letter before trial.

'When the appellant appeared for trial, he informed the court that he had been unable to obtain an attorney to assist in his defense and had been refused permission to make a long distance call to his father in his efforts to obtain counsel. Upon receiving this information, the trial judge immediately informed the appellant that the case would be continued until the following term of court, in September, so as to enable him to procure counsel. The appellant, however, stated to the court that he preferred going ahead with the trial at that time and elected to go to trial without counsel.

'The record clearly shows that appellant was not illiterate, was above average intelligence, understood his rights, was given the opportunity to procure an attorney and, without coercion, chose to go to trial without the aid of counsel.'

We concluded that the appellant intelligently, understandingly and effectively waived any right that he may have had to the assistance of counsel and for such reason the lower Court properly dismissed the appellant's petition for a writ of habeas corpus. In so doing, we said:

'There is no statutory requirement in this State that counsel be appointed to represent one charged with the commission of a non-capital offense, Section 17-507, 1952 Code of Laws of South Carolina; Shelton v. State of South Carolina, 239 S.C. 535, 123 S.E.2d 867; nor any requirement arising under the Constitution of the United States that one charged with such an offense in State court who is unable to procure counsel, must be furnished counsel by the State in every case, whatever the circumstances, but the due process clause of the Fourteenth Anendment to the United States Constitution does require that counsel be appointed to represent a defendant in a non-capital case in the State courts where the circumstances of the particular case are such that the furtherance of justice would be defeated if counsel were not provided. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Shelton v. State of South Carolina, supra, 239 S.C. 535, 123 S.E.2d 867.'

The landmark case of Betts v. Brady, cited in our opinion, holding that the due process clause of the Fourteenth Amendment does not confer on an indigent person charged with crime in a State court an absolute right, independent of the circumstances, to have counsel appointed for him was overruled in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, holding that the Fourteenth Amendment makes obligatory on the States the provision of the Sixth Amendment that in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel for his defense. The now recognized constitutional requirement that counsel be appointed for indigent criminal defendants in State cases applies in non-capital cases as well as in capital cases.

We should point out that our decision was rendered on July 24, 1962 and, thereafter, the Gideon case was decided on March 18, 1963.

The appellant, again in his own behalf, on April 1, 1963, filed a petition for a writ of habeas corpus, in which it was alleged that he had been denied due process by the failure of the court to furnish him counsel at his trial. This petition was denied without a hearing by the lower Court by anorder dated April 11, 1963. There was no appeal from this order.

The appellant, on September 21, 1963, filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of South Carolina, asserting once again that he had been denied due process by the failure of the State to furnish him counsel at his trial. The District Court issued a writ of habeas corpus and appointed counsel to represent the appellant, and a hearing on this petition was held before the Honorable J. Robert Martin, Jr., United States District Judge. Judge Martin issued an order on March 2, 1964, holding that the appellant was tried without counsel and without the court having offered to appoint counsel for him. He further directed that the appellant be released from custody should the State of South Carolina fail to afford him a new trial within a reasonable time. Thereafter, the State of South Carolina made a motion for a new hearing in the United States District Court on the ground that the appellant had failed to exhaust the remedies available to him in the Courts of South Carolina. Upon hearing argument on this motion, Judge Martin issued his order, dated March 17, 1964, rescinding his previous order and denying the appellant's writ as premature, with leave to the appellant to renew his petition upon the exhaustion of the remedies available to him in the Courts of South Carolina. It was the position of the State that the Courts of South Carolina should be given the opportunity to pass on the question raised by the appellant in the light of the Gideon case.

The appellant, with the aid of court appointed counsel, on March 25, 1964, petitioned the Court of Common Pleas for Richland County for a writ of habeas corpus, asserting the denial of due process by reason of having been tried for armed robbery, a felony, without being represented by counsel. He asserts that at the time he was indigent and the court did not appoint counsel to represent him, and that he did not intelligently, understandingly and effectively waive any right that he may have had to the assistance of counsel. The appellant asserts that his conviction and sentence should be set aside and his case remanded to the lower Court for a new trial. A hearing was held on this petition before the Honorable John Grimball, Resident Judge of the Fifth Circuit, who issued his order of April 19, 1964, denying the appellant's application for relief and finding that he had waived his right to court appointed counsel. This appeal followed.

The first question presented for determination is whether the lower Court erred in failing to hold as a matter of law that the appellant was indigent rather than refusing to rule on the question. The trial Judge, in denying the appellant's petition for a writ of habeas corpus, held that 'this Court is not ruling on the question as to whether or not the petitioner was indigent.' It becomes unnecessary...