State v. Bagwell

• Decision Date: 09 November 1942
• Docket Number: 15461.
• Citation: 23 S.E.2d 244,201 S.C. 387
• Parties: STATE v. BAGWELL et al.
• Court: South Carolina Supreme Court

23 S.E.2d 244

201 S.C. 387

STATE v. BAGWELL et al.

No. 15461.

Supreme Court of South Carolina

November 9, 1942

Whiteside & Taylor, of Spartanburg, John E. Stansfield, of Aiken and Martin & Sturkie, of Lexington, for appellants.

Jeff D. Griffith, Sol., of Saluda, Samuel R. Watt, Sol., of Spartanburg, T. B. Greneker, of Edgefield, R. Milo Smith, of Lexington, and J. Fred Buzhardt, of McCormick, for respondent.

FISHBURNE Justice.

The defendants, Clarence Bagwell, George Logue and Sue Logue were convicted in Lexington County for the murder of Davis W Timmerman, and sentenced to death by electrocution. The homicide was committed in Edgefield County on September 17 1941. On the 5th day of January, 1942, a Special Term of Court was held in Edgefield County, and the grand jury of that County returned an indictment against Joe Frank Logue and Clarence Bagwell, as principals, and George Logue and Sue Logue, as accessories before the fact, to the murder of Timmerman. Upon motion of the three last named defendants for a change of venue from Edgefield County to Lexington County, made upon the ground that they could not obtain a fair trial in Edgefield County, the trial Judge after hearing affidavits and argument announced that it was the opinion of the Court that the motion should be granted and the change of venue should be made to Lexington County in respect to all four of the defendants. Immediately upon this announcement being made the attorney for Joe Frank Logue, who had made no motion for a change of venue, objected to the transfer of the case as to him, and stated that the defendant, Joe Frank Logue, desired to be tried in the County of Edgefield, where the crime was committed. Whereupon the trial Judge excluded Joe Frank Logue from the order granting the change of venue, and included only the defendants, Clarence Bagwell, George Logue and Sue Logue, and they were tried in the County of Lexington on the 21st day of January, 1942. At this trial Joe Frank Logue testified as a witness for the State.

There is no need to set out the evidence in great detail, because the questions made by the appeal will be sufficiently clear from a brief statement of the facts.

It appears from the record that Wallace Logue, the husband of the defendant, Sue Logue, and a brother of the defendant, George Logue, was killed in Edgefield County by Davis Timmerman in 1940. Upon his trial for murder in March, 1941, he was acquitted, and from the day of his acquittal, as shown by the evidence for the State, the defendants, George Logue and Sue Logue, together with Joe Frank Logue, plotted his death to avenge the death of their kinsman.

Joe Frank Logue, the nephew of Wallace Logue and of the defendants, Sue Logue and George Logue, was a member of the police force of the City of Spartanburg, and, as stated, testified for the State in the trial in Lexington County. According to his testimony, the defendants, George Logue and Sue Logue, immediately upon the acquittal of Davis Timmerman, set plans in motion to accomplish his death. For several months they persistently urged Joe Frank Logue to find some man who would kill Davis Timmerman for the sum of $500, which they agreed to pay as soon as the deed was committed. Joe Frank Logue fully entered into the plan for the assassination; he knew the defendant, Clarence Bagwell, who lived in Spartanburg, and Bagwell upon his solicitation, readily agreed to kill Davis Timmerman for the sum offered.

The commission of the murder was arranged for September 17, 1941. The defendant, Bagwell, did not know, and had never seen his intended victim, nor does it appear that he had ever been in Edgefield County. On September 17th, Joe Frank Logue borrowed an automobile from a friend, and under circumstances of the greatest secrecy, picked up Bagwell somewhere on the outskirts of Spartanburg, and together they traveled to the scene of the killing.

Davis Timmerman owned and operated a combination grocery store and service station at a crossroads settlement in Edgefield County, about eight miles from the town of Edgefield. The store was located on one side of the highway, and his home was situated on the other side, nearly in front of the store. When Joe Frank Logue and Clarence Bagwell, in the late afternoon of September 17, 1941, reached the crossroads, the automobile in which they were traveling was stopped immediately in front of Timmerman's store; Bagwell was driving, and Logue was on the floor in the back of the car, covered by a black raincoat. He had been born and reared in this community, and did not wish to have his identity discovered. Bagwell got out of the automobile, walked into the store, and without warning shot Timmerman, who was alone in the store, killing him instantly; he knew Timmerman only by description. After committing the murder, Bagwell ran out of the store, jumped into the automobile, and he and Joe Frank Logue drove back to Spartanburg. Logue remained hidden in the automobile until they had traveled several miles from Timmerman's store; he then got into the front seat of the automobile with Bagwell. In the early part of November of the same year, these two, together with George Logue and Sue Logue, were arrested for the murder of Davis Timmerman.

Clarence Bagwell made a full confession of his participation in the crime. Joe Frank Logue, shortly after he was placed in jail, also confessed the part he had played in the commission of the homicide, implicating his uncle and his aunt, the defendants, George Logue and Sue Logue. Bagwell did not testify at the trial, but the officers who had heard his confession, narrated it fully to the jury. Joe Frank Logue, who was not upon trial, testified in detail. He told of the several trips made by Sue Logue and George Logue to Spartanburg to see him in connection with the planned murder; that three days after the homicide, as agreed upon with them, he went to their home in Edgefield County, which was about one mile from the home of Davis Timmerman, and received the sum of $500 from George Logue with which to pay Bagwell; that after returning to Spartanburg he turned this money over to Bagwell. In addition to the testimony of Joe Frank Logue, there are many facts and circumstances in the case tending to show the active participation of George Logue and Sue Logue in the conspiracy to kill Davis Timmerman. Throughout the trial, however, they asserted their innocence, and denied any part in the crime.

The appellants' first ground of appeal raises the issue that the trial Judge erred in refusing to admit in evidence the order granting the change of venue from Edgefield County to Lexington County as to the three defendants who were upon trial. It appears from an examination of that order that it carried a statement by the Judge that in his opinion none of the defendants, including Joe Frank Logue, could procure a fair and impartial trial in Edgefield County. It will be recalled that although no motion had been made for a change of venue by Joe Frank Logue, it was the announced intention of the trial Judge sua sponte to transfer his case to Lexington County along with the case of the other defendants. Upon objection being made by counsel for Joe Frank Logue, he was not included in the change, but the venue of his case remained in Edgefield County.

It is contended by the appellants that the introduction of the order containing the statement of the trial Judge that it was his opinion that none of the defendants could receive a fair trial in Edgefield County, and the objection of Joe Frank Logue to being tried in any other County, would tend to show that Joe Frank Logue had received certain inducements from the State to testify as the State's witness. It is urged that the order was competent and should have been admitted in evidence upon the trial to test the credibility of the witness, Joe Frank Logue, and to show that this witness expected some leniency when he himself should be placed on trial in Edgefield County.

We think that there is no merit in the exception raising this question.

In overruling the motion and excluding the order, the Court stated: "It is admitted that the change of venue was had, with the exception of the defendant, Joe Frank Logue, and my reason for it is not pertinent to this inquiry."

The Court also said: "I rule that the order is not competent for the reason that it was a mere opinion on my part as to whether or not Joe Frank Logue could get a fair trial in Edgefield County. The defense is endeavoring to make a witness out of the Court."

These statements were made in the absence of the jury.

The declared purpose in offering in evidence the order changing the venue was to get before the jury the statement made therein by the trial Judge that none of the defendants could obtain a fair trial in Edgefield County. Of course this included Joe Frank Logue. Its introduction in evidence would have been tantamount to making the trial Judge a witness in the case.

Because of his duties, it is erroneous for a presiding Judge to testify as a witness in a case being tried before him. 23 C.J.S., Criminal Law, § 972, p. 303. In such a case the maxim prevails that no one shall be both Judge and witness in the same cause. The rationale of this doctrine is obvious. As was well said by the Court in People v. Dohring, 59 N.Y. 374, 17 Am.Rep. 349, in discussing the propriety of a Judge's giving evidence in a trial before him: "Because such practice, if sanctioned, may lead to unseemly and embarrassing results, to the hindering of justice, and to the scandal of the courts."

The question came before the Supreme Court of Arkansas in Rogers v. State, 60 Ark. 76, 29 S.W. 894, 897, 31 L.R.A. 465, 46 Am.St.Rep. 154, and it was there said: "However...