State v. Bellue, 19520

• Decision Date: 20 November 1972
• Docket Number: No. 19520,19520
• Citation: 193 S.E.2d 121,259 S.C. 487
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Andrew BELLUE, Appellant.

Page 121

193 S.E.2d 121

259 S.C. 487

The STATE, Respondent, v. Andrew BELLUE, Appellant.

No. 19520.

Supreme Court of South Carolina.

Nov. 20, 1972.

John W. Williams, Jr., Columbia, and Harry H. Abernathy, Jr., Great Falls, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen., Emmet H. Clair and Robert M. Ariail, Columbia, and Sol. William R. Hare, Chester, for respondent.

LITTLEJOHN, Justice:

The defendant, Andrew Bellue, is appealing from a jury verdict finding him guilty of murdering Billy Hinson and from the sentence of death by electrocution pursuant to Section 16--52 of the 1962 Code of Laws.

Defendant raises several questions in his brief. He submits that the court erred in excusing for cause a prospective juror who was opposed to capital punishment. He urges that it was error to allow in evidence defendant's involvement in spearate and independent criminal activities. He contends that photographs were erroneously made exhibits to his prejudice. And, asserts that the confession of defendant should have been excluded.

Exceptions challenging the judge's excusing juror Stevens were not argued and are therefore considered abandoned. In oral argument of the case, counsel in open court abandoned his challenge of the judge's ruling as to juror Clack (who was opposed to capital punishment) in the light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

The defendant contends that a small 22 caliber pistol was improperly admitted into evidence because of the failure of the State to connect it to the murder of Billy Hinson. A brief summary of the testimony surrounding the pistol is in order.

Mrs. Nancy Hinson stated that the last time she saw her husband Billy Hinson alive, he was leaving in his car with the defendant Andrew Bellue. Dr. William Wallace, the Chester County physician, testified that Billy Hinson had died of a bullet wound made by a small caliber bullet: 'Probably a 22.' Elizabeth Kimbrell testified that the defendant, using a 'little black pistol', had forced her to drive him in her car to the area where the deceased was found and to the general area where the defendant was later arrested. She ran and abandoned the car and the defendant. Lieutenant Boyd, of the York County Sheriff's Department, testified that he found the pistol in the abandoned Kimbrell car and identified the pistol marked for identification by saying:

'Yes, sir, this is the gun, because this pin was gone, because I unloaded it at the scene and the pin was gone.'

Sergeant Smith, of the Rock Hill Police Department, testified that he found a 'shell ejecting pin which comes from a cheap type 22 caliber pistol revolver' in the car owned by the victim, Billy Hinson. He also stated and demonstrated that the pin was the type missing from the pistol found in the Kimbrell car. Sergeant King, of the Chester County Sheriff's Department, testified that when he found and arrested the defendant he was in Billy Hinson's car and that custody of the car was given to police officers from Rock Hill. And so, we have evidence that a pistol used by defendant was found in Kimbrell's car and a pin matching the one missing from the pistol was found in Hinson's car, in which the victim was last seen alive and in which the defendant was arrested.

It is recognized without citing authority that evidence may be of two kinds, direct and circumstantial. In this case, there was no direct evidence as to the pistol being the murder weapon. The case is based on a chain of circumstantial evidence. In State v. Graham, 237 S.C. 278, 117 S.E.2d 147 (1960), the Court stated:

'It is said that the cap was not connected in any way with either appellant and that the evidence was not sufficient to identify the gloves as having belonged to Holland or to show that they had any connection with the crime. Both of these articles were discovered by the firemen immediately after the fire. The can cap was admissible for whatever it might have been worth as a link in the chain of evidence tending to establish the corpus delicti. The fact that Holland had been seen wearing bloves similar to those introduced in evidence justified their admission. Of course, the weight to be given this circumstance was for the jury.'

In United States v. Lombardozzi, 335 F.2d 414 (2d Cir. 1964), the Court held that it was not error to introduce a gun available to defendant as the type of instrument which could have caused the injury described by the doctor.

The introduction of the gun as one that was in the possession of defendant and one that was the type that could have caused the injury described by the doctor was not error. The circumstances hereinabove described correctly connected the gun to the crime and were for the jury to weigh.

During the course of the trial, photographs were admitted in evidence as a part of the State's case. The defendant contends the photographs were inflammatory and were improperly admitted. It is apparent from the record that no objection to these photographs was made at the time the judge made them exhibits. Inasmuch as the issue was not raised in the court below, we refuse to consider them on this appeal.

'The rule is well established that if asserted errors are not presented to the lower Court, the question cannot be raised for the first time on appeal. State v. Alexander, 230 S.C. 195, 95 S.E.2d 160, and State v. Bolin, 230 S.C. 204, 95 S.E.2d 163.' State v. McCrary, 242 S.C. 506, 131 S.E.2d 687 (1963).

What we have said about defendant's failure to object to admission of photographs is applicable to the exception he would now raise to the court's admitting evidence of other criminal activity. No objection was raised in the trial and the question will not be considered on appeal.

The final question for determination concerns the alleged confession. The defendant asserts that he was under the influence of drugs and that the State failed to carry the burden of proving that his oral confessions were voluntary. It is his contention that by reason of the use of drugs he lacked capacity to understand the Miranda warnings and to...