Ross v. State
| Decision Date | 27 December 1967 |
| Docket Number | No. 18741,18741 |
| Citation | 158 S.E.2d 647,250 S.C. 442 |
| Court | South Carolina Supreme Court |
| Parties | Robert E. ROSS, Appellant, v. STATE of South Carolina, and Ellis C. MacDougall, Director of Board ofCorrections, and their attorneys, Respondents. |
Clarence A. Cappell, Greenville, for appellant.
Solicitor B. O. Thomason, Jr., Greenville, Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Edward B. Latimer, Columbia, for respondents.
This is an appeal from an order of The Honorable Frank Eppes, Resident Judge of the Thirteenth Circuit, dismissing a writ of Habeas corpus and remanding the prisoner, Robert E. Ross, to the custody of the South Carolina Penitentiary where he is presently serving a sentence of twenty-one years. This sentence was imposed upon Ross in Greenville County on November 2, 1956.
It appears from the record that the appellant herein, along with Roy Thurmond and John H. Byrd, were indicted and charged with the crime of rape, a capital offense. Sections 16--71 and 16--72 of the Code. When this case was called for trial on November 2, 1956, all of the defendants upon their arraignment entered a plea of 'not guilty'. After a jury had been impaneled and sworn this plea was then withdrawn, and with the consent of the Solicitor, verdicts of guilty with a recommendation to the mercy of the court were returned. Each of the defendants was sentenced to serve a term of twenty-one years.
The aforesaid procedure, which was equivalent to a guilty plea, was resorted to in order to mitigate the otherwise mandatory punishment of death by electrocution.
The appellant, by his petition for a writ of Habeas corpus dated July 13, 1964, sought relief from this sentence, asserting that he was innocent and was not accorded due process of law because he was denied the assistance of counsel in his defense. The respondents, by their return, alleged that due process of law was accorded the appellant in his conviction and sentence. Counsel was appointed by the court to represent the appellant in this Habeas corpus proceeding and in his appeal therefrom to this court from a denial of his petition by the trial judge.
After a full hearing, the trial judge found no merit in any of the grounds for Habeas corpus relied upon in the petition. He found as a fact that the appellant was represented by counsel at his trial on November 2, 1956 and that they did a commendable job of representing him. He further held that it was highly possible under the facts of the case for the appellant to have received the death sentence but his attorneys were able to persuade the Solicitor to accept a plea of guilty with a recommendation to mercy. He further held that the appellant was in no way denied due process of law in his trial in the lower court.
The appellant, by his exceptions, asserts (1) that at the trial judge was in error in holding that he was represented by counsel at the time of his arraignment and his purported plea of guilty, and (2) that such plea of guilty was improvidently entered and accepted.
We have held that where a defendant is charged with the commission of the crime of rape, a capital offense, the effective assistance of counsel in such a case is a necessary prerequisite of due process of law and the denial of such constitutes valid ground for the issuance of the writ of Habeas corpus. Crosby v. State, 241 S.C. 40, 126 S.E.2d 843.
Where a person seeks such relief by writ of Habeas corpus he has the burden of sustaining the allegations of his petition by a preponderance of the evidence. Bailey v. MacDougall, 247 S.C. 1, 145 S.E.2d 425. The petition of the appellant and the return thereto presented a material issue of fact for determination by the lower court and such issue having been decided adversely to the appellant we are limited in our review to a determination of whether there was evidence to sustain the findings made by the trial judge.
The contention of the appellant that he is not guilty of the crime of rape does not raise a matter for consideration by Habeas corpus. Dickson v. State, 247 S.C. 153, 146 S.E.2d 257.
The appellant testified that two lawyers of the Greenville Bar came to the State Penitentiary and interviewed him along with his two codefendants. He stated that he did not accept them as his attorneys nor did he request them to represent him. He admits that when he was brought to Greenville for trial that one of these attorneys appeared at his arraignment and entered a plea of not guilty for him. He admitted that he did not make any protest or call the attention of the trial judge to the fact that he did not have a lawyer. He says that he maintained all the time that he was not guilty of the crime and that he made a request to the two attorneys for them to get him a separate trial. He admits that these attorneys explained to him that if he were...
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Clark v. State, 19500
...in our review to a determination of whether there was evidence to sustain the findings of fact made by the hearing judge. Ross v. State, 250 S.C. 442, 158 S.E.2d 647; Dixon v. State, 253 S.C. 41, 168 S.E.2d 770; White v. State, 255 S.C. 493, 179 S.E.2d 906. Aside from the foregoing, even if......
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State v. Cash
...suffered no prejudice by reason of their representation by substitute counsel. There is evidence to sustain this finding. Ross v. State, 250 S.C. 442, 158 S.E.2d 647. Assuming, however, that the appellants were not properly represented by substitute counsel at the line-ups and that the admi......
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Foxworth v. State
...before us contains ample evidence to support the findings of the lower court, we would affirm on this ground alone. Ross v. State, 250 S.C. 442, 158 S.E.2d 647 (1967); Clark v. State, 259 S.C. 378, 192 S.E.2d 209 The court below also concluded, however, that the claims raised and those that......
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Childers v. State, 19679
...and the evidence. We conclude that there is no merit in the appeal and the judgment below is affirmed on the authority of Ross v. State, 250 S.C. 442, 158 S.E.2d 647; Dixon v. State, 253 S.C. 41, 168 S.E.2d 770; White v. State, 255 S.C. 493, 179 S.E.2d 906; Clark v. State, 259 S.C. 378, 192......