State v. Bellue, 19547

• Decision Date: 15 January 1973
• Docket Number: No. 19547,19547
• Citation: 260 S.C. 39,194 S.E.2d 193
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Andrew BELLUE, Jr., Appellant.

Page 193

194 S.E.2d 193

260 S.C. 39

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

No. 19547.

Supreme Court of South Carolina.

Jan. 15, 1973.

W. M. Brice, Jr., York, and James T. Irvin, Jr., and Robert M. Jones, Rock Hill, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Emmet H. Clair, Columbia, and Sol. Mike S. Jolly, Union, for respondent.

BRAILSFORD, Justice:

This is an appeal by Andrew Bellue, Jr., from his conviction at the March, 1971 term of the Court of General Sessions for York County of murder and his sentence to death by electrocution. The appeal was heard at the May, 1972, term of this Court. Of nine questions presented, five were relevant only to the imposition of the death penalty. Since the appeal was argued, these questions have been rendered moot by the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the effect of which was to invalidate defendant's sentence to death by electrocution. Per force the same authority, in State v. Bellue, S.C., 193 S.E.2d 121, filed November 20, 1972, while affirming the conviction of the same person who is appellate here of the murder of another victim, we set aside his sentence to death by electrocution and remanded the case for sentencing him to life imprisonment.

In addition to the moot issues relating to the death penalty, defendant charges errors in other respects on account of which he seeks a new trial. Although the importance of these questions to the defendant is minimized by the sentence which he is presently serving, we consider them as briefly as may be.

Defendant charges that the court erred by admitting testimony as to an oral confession made by him on the second day following his arrest. His principal reliance is upon the claim that he was so much under the influence of drugs as to be mentally incompetent when the confession was made. The same claim was urged unsuccessfully in State v. Bellue, supra, with respect to the oral confession of the defendant to the murder involved in that case. The defendant confessed to both crimes at the same time and under identical circumstances. Our reasons for overruling the exceptions to the admission of this testimony at that trial are equally applicable here. Although the evidence bearing on admissibility of the testimony was not identical at the two trials, we need only say now that the trial judge held an evidentiary hearing outside the presence of the jury on this issue. He resolved the relevant issues of fact bearing upon the admissibility of the confession against defendant. Although the evidence was conflicting, there was testimony which reasonably supported the court's factual findings. We affirm under the established rule that the determination by the trial court of the preliminary facts upon which the admission of evidence depends will not be disturbed on appeal 'unless so manifestly erroneous as to show an abuse of judicial discretion.' State v. Henderson, 74 S.C. 477, 55 S.E. 117 (1906). See also State v. Bethea, 241 S.C. 16, 126 S.E.2d 846 (1962), in which the authorities in this jurisdiction on the scope of review in such cases were examined, and the conclusion drawn from them that affirmance is required if, as here, 'the conclusion of the trial judge is a reasonable inference from the evidence.' 241 S.C. at 24, 126 S.E.2d at 850.

The defendant also charges error in the admission into evidence of photographs showing the deceased as he was found at the scene of the crime. However, another photograph of the same scene was already in evidence without objection; and the defendant's counsel admitted that that photograph showed the same things as the ones in question, although from a different angle. In light of the similarity between the photograph already in evidence and the controverted ones, no...