State v. Brooks

• Decision Date: 09 November 1959
• Docket Number: No. 17580,17580
• Citation: 111 S.E.2d 686,235 S.C. 344
• Parties: STATE, Respondent, v. Charles Edward BROOKS, Appellant.
• Court: South Carolina Supreme Court

Page 686

111 S.E.2d 686

235 S.C. 344

STATE, Respondent, v. Charles Edward BROOKS, Appellant.

No. 17580.

Supreme Court of South Carolina.

Nov. 9, 1959.

Donald James Sampson, Willie T. Smith, Jr., Greenville, for appellant.

James R. Mann, Solicitor, Clarence A. Cappell, Greenville, for respondent.

STUKES, Chief Justice.

Appellant, who is a young unmarried Negro man, was convicted of rape and sentenced to death. Secs. 16-71, 72, Code of 1952.

The evidence for the State was that the prosecutrix and her sister-in-law, both young married white women, were walking along a street of the City of Greenville after dark on their way to catch a bus to rejoin a family party with which they had come to the city from their home in an adjoining county. Appellant accosted them saying that he was a prison escapee and had already killed two girls, and at pistol-point threatened their lives and compelled them to enter an alley which led to an areaway adjacent to a church where they were both raped by him. He held the pistol on them until he laid it down and the companion of prosecutrix picked it up, ran to a nearby drive-in (restaurant) and gave the alarm. She reported that appellant still had the prosecutrix in the alley; several people went to the rescue and the prosecutrix was seen to jerk away from appellant who ran behind a house. The police, who had been called by the manager of the restaurant, arrived and by the aid of a spotlight on their car found appellant hiding in the shrubbery and arrested him.

He was taken to the police station, identified by the prosecutrix and her companion, and made and signed a written statement to the officers. In it he admitted intercourse with both women at the time and place but made no reference to force or to the pistol. However, in his testimony at the trial he admitted that he had a loaded pistol but said that it remained in his pocket until he dropped it at the scene. It was in evidence.

The prosecutrix and her companion were taken by the police to the emergency room of the General Hospital where they were examined by a physician. He testified that he found in the organ of the prosecutrix male sperm and a foreign, blackish hair. They were then taken back to the police station and separate written statements were taken from them by different officers, which were offered in evidence by appellant. There was no important conflict between the separate statements or between the contents of them and the testimony at the trial by the affiants, both of whom testified.

There is no need to further review the evidence because there can be no doubt of the sufficiency of it to convict.

Appellant's first question on appeal is that the trial judge should have postponed the trial longer than he did. The alleged crime was committed on Jan. 3, 1959. Appellant was arraigned and entered his plea of not guilty on March 9 and the case was set for trial on March 12. However, upon motion of appellant's counsel it was continued to March 17.

Although formally appointed by the court to defend on March 9 (because appellant had no paid counsel) the appointed counsel had been in the case from the beginning, and had attended in behalf of appellant the preliminary hearing on March 3 where they were given opportunity to examine the State's witnesses. It is noted above that the trial was continued upon their motion. That appears to have been satisfactory as there was no motion on March 17 to continue further. It may be added that the trial record shows a skillful defense of appellant which may also be said of the preparation and presentation of the appeal.

Upon this question both appellant and respondent cite State v. Lytchfield, 230 S.C. 405, 95 S.E.2d 857, 859, 66 A.L.R.2d 263, which affirmed the denial of continuance and the following was said:

'The granting or refusal of a motion for continuance is within the discretion of the trial judge and his disposition of such a motion will not be reversed on appeal unless it is shown that there was an abuse of discretion to the prejudice of appellant. A multitude of cases to this effect will be found in 7 S.C. Digest, Criminal Law, k586 et seq., p. 504 et seq. and supplement. Review of them shows that reversals of refusal of continuance are about as rare as the proverbial hens' teeth.'

Such a rare case is State v. Livingston, 233 S.C. 400, 105 S.E.2d 73, which is relied upon by appellant. In the trial of that capital case no defense was interposed although there was in the record a hint of the existence of such, and we reversed for opportunity to present it at another trial. In the trial of the instant case the defense of consent of the prosecutrix was vigorously asserted and evidence introduced in an effort to establish it.

We find no error, i. e., abuse of discretion, in the refusal of the court to continue the case further than was done.

Turning to the second question, the members of the jury were put upon their voir dire. Sec. 38-202, Code of 1952. Defense counsel framed several questions which they requested the court to ask the jurors. Among them were: 'No. 2. Would you have any prejudice against a defendant because of his color?' And 'No. 3. Would it take less evidence for you to render a verdict against a colored person charged with rape or assault with intent to ravish against a white female, than it would for you to render a verdict against a white person charged with rape or assault with intent to ravish a colored female?' The court complied with respect to No. 2 and asked it from the bench, but he declined No. 3 because it was embraced in substance in No. 2. The court permitted counsel to ask questions as part of the jurors' examination on voir dire, and they did ask questions as they chose, including questions relating to race. (This is taken from the agreed statement in the Transcript of Record.) We agree with the trial judge that the substance of No. 3 is included in No. 2 which he allowed and asked. Moreover, counsel asked other similar questions with the permission of the court. Such examination of jurors, its nature and extent, are within the discretion of the trial judge. State v. Carson, 131 S.C. 42, 126 S.E. 757. It appears to have been exercised soundly here.

Appellant cites to the contrary State v. Higgs, 143 Conn. 138, 120 A.2d 152, 54 A.L.R.2d 1199. But it appears from the opinion in that case that the trial court excluded from the examination on voir dire all questions concerning race prejudice. Not so here, as has been seen. The cited case is the subject of a note in 9 S.C. Law Quarterly 485.

Received in evidence was testimony of the prosecutrix, of her companion, of appellant and his extrajudicial statement that he had intercourse with the companion at the same time and place as with the prosecutrix. There was no objection to the admission of any of this evidence but because this is a capital case the exceptions thereto will be considered in favorem vitae. 7 West's S.C. Digest, Criminal Law, k1030(1), p. 658. This is the third question argued upon appeal.

Ordinarily, in a criminal prosecution evidence of his commission of another, independent crime is not admissible against the defendant if he objects. But there are well established exceptions to the rule. In State v. Lyle, 125 S.C. 406, 118 S.E. 803, 807, they are set out as follows: 'Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish, (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.'

The evidence questioned here would clearly seem to be within subdivision (4) of the foregoing quotation, just as the other Aiken forgeries were in Lyle's case. The proposition was earlier stated and applied by this court in State v. Weldon, 39 S.C. 318, 17 S.E. 688, 689, 24 L.R.A. 126: 'Where the evidence tends to show that the series of offences are so connected together as practically to constitute a continuous transaction, then it is competent to receive evidence of such continuous offences.'

Appellant's own account of his conduct, as contained in his statement to the officers and his testimony, was so inextricably interwoven with respect to both women that it was practically impossible to segregate the evidence as to each. As said in some of the cases, it was in effect all one transaction.

The rule, or rather the exception to the rule, which is applicable here has been applied in many cases which involved sex crimes. State v. Richey, 88 S.C. 239, 70 S.E. 729. State v. Whitener, 228 S.C. 244, 89 S.E.2d 701. Annotation, 167 A.L.R. 565, entitled, Admissibility, in prosecution for sexual offense, of evidence of other similar offenses. The following paragraphs are drawn from the cited annotation, at pages 572, 595, 596:

Where the similar offense as to which proof was offered took place on the same occasion as the sexual offense for which conviction was sought and was so connected therewith as to constitute a part of the transaction, or, as commonly said, to be a part of the res gestae, evidence of the other offense is admissible upon the trial. (Citing many decisions from seventeen jurisdictions.)

Where it forms part of the res gestae, evidence is admissible to show that the defendant ravished, or attempted to ravish, another female, on the occasion of the alleged rape of the prosecutrix. People v. Murphy, 53 Cal.App. 474, 200 P. 484; People v. MacDonald, 53 Cal.App. 488, 200 P. 491; People v. Kruvosky, 53 Cal.App. 744, 200 P. 831; State v. Ward, 337 Mo. 425, 85 S.W.2d 1; Com....