State v. Cannon, No. 18575

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBUSSEY; MOSS, C.J., LEWIS and BRAILSFORD, JJ., and LIONEL K. LEGGE
Citation248 S.C. 506,151 S.E.2d 752
PartiesThe STATE, Respondent, v. Frank CANNON, Appellant.
Decision Date16 November 1966
Docket NumberNo. 18575

Page 752

151 S.E.2d 752
248 S.C. 506
The STATE, Respondent,
v.
Frank CANNON, Appellant.
No. 18575.
Supreme Court of South Carolina.
Nov. 16, 1966.

[248 S.C. 507]

Page 754

Rembert D. Parler, James R. Turner, Spartanburg, for appellant.

[248 S.C. 509] Solicitor John H. Nolen, Assistant Solicitor Claude A. Taylor, Jr., Assistant Solicitor Milton A. Smith, Spartanburg, for respondent.

[248 S.C. 510] BUSSEY, Justice.

The defendant-appellant, Frank Cannon, was convicted of rape and sentenced to death at the June 1965 term of the Court of General Sessions for Spartanburg County. Prior to his trial, motions for a continuance and for a change of venue were denied. The crime, with which Cannon is charged, was committed on the night of December 17, 1964. The prosecutrix was a fourteen year old white girl who was engaged as a babysitter at the home of Mr. and Mrs. Carlisle in the City of Spartanburg. At about 7:45 o'clock P.M. her attacker entered through the rear door of the Carlisle residence, beat her into unconsciousness, stripped much of her clothing from her, and placed her in a stolen automobile which was driven to an area, some two or three miles distant, where the prosecutrix was criminally assaulted. According to the testimony of the prosecutrix, at the time she was raped she was unconscious, and it would appear that she remained more or less so during most of the time, until she made her escape from her attacker somewhere near 11 o'clock that night. The medical evidence leaves no doubt that she was raped.

Upon the discovery of the absence of the prosecutrix, at about 9 o'clock on the night of the attack, an alarm was given but the efforts of many law enforcement officers were unsuccessful in apprehending the attacker that night. The sequence [248 S.C. 511] of events in which the prosecutrix and her attacker were involved, as well as the search for the attacker, extended over a considerable area, all within Spartanburg County. In the course of the search, a number of articles belonging to the attacker were recovered, including his hat, a pair of gloves, a jacket, a watch, and one shoe.

On Sunday, December 20, 1964, at approximately 1:30 P.M., a number of police officers of the City and County of Spartanburg went to the home of the appellant Cannon, armed with what purported to be a search warrant, at which time the appellant was taken into police custody, the dwelling was searched and certain articles were seized by the officers. The appellant and the seized articles were then taken to the Spartanburg County jail where the appellant was restrained and interrogated, oral and written confessions from the appellant being obtained by the officers that afternoon.

In the late afternoon or early evening of the same day the appellant was taken by police officers from the jail for the purpose of having him retrace his movements on the night of December 17, after which he was returned to the jail. At sometime around 8:30 o'clock P.M., December 20th, the appellant was taken before a magistrate and an arrest warrant was obtained.

The articles taken from the home of the appellant by virtue of the purported search warrant consisted of a shoe box, the serial number of which corresponded with the shoe already in the possession of the officers; a receipt given the appellant upon the purchase of the shoes, and a wrist watch band which allegedly belong to the watch already in possession of the police. The purported search warrant used by the officers in the search of appellant's home was ruled invalid by the trial judge, and the articles taken from the home of the appellant were excluded from evidence upon the trial of the case, in accord with the decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933.

[248 S.C. 512]

Page 755

On January 6, 1965 the court appointed two very capable members of the Spartanburg Bar to represent the appellant, and since their appointment they have most diligently represented him, not only in the court below but in the pursuit of this appeal. In addition, since this is a capital case, under our well established rule, in favorem vitae, it is our duty to examine the entire record to determine whether there were any prejudicial errors affecting any substantial rights of the appellant. An examination of the record indicates that appointed counsel have carefully raised and preserved every point which could have resulted, even arguably, in prejudice to the appellant.

Several questions are presented arising out of the confession of the appellant. Before the said confession was offered in evidence by the State and ruled admissible by the trial judge, the jury was excluded and the trial judge heard rather detailed evidence from the State and the appellant as to the circumstances attendant upon and surrounding the confession. The following language is taken from the statement of the case:

'Over objections of defense counsel the presiding judge held that the State had made out a prima facie showing that the confession was admissible, and it was admitted in evidence under instructions that it, the jury, was to make the ultimate determination of whether or not the confession was voluntary.'

The appellant contends first that the action of the trial judge did not accord him a fair hearing and a reliable determination of the voluntariness of his confession in accordance with the holding of the United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3rd 1205. Secondly, he contends that the trial judge should have excluded the confession, as a matter of law, (a) under the totality of the circumstances surrounding the giving of the same; (6) because it was the result or fruit of an unlawful search and seizure; and (c) that it should have been excluded by virtue of the reasons [248 S.C. 513] underlying Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Disposition of the last stated contentions would ordinarily require a full discussion of all of the evidence adduced before the trial judge. In view, however, of the disposition which we hereinafter make of the first stated contention of the appellant, we deem it inadvisable to discuss the evidence in detail.

After having carefully reviewed all of the evidence and considered all of the authorities cited by the appellant, we conclude that there are factual conflicts arising out of the evidence which must be resolved before it can be determined whether the confession was lawfully admissible in evidence.

Much of the evidence on the part of the State tending to prove the confession of the appellant voluntary is uncontradicted, but there are conflicts in the evidence. There was a particularly sharp conflict as to whether the articles taken from the home of the appellant by virtue of an invalid search warrant were in the interrogation room, and whether or not the same were used to induce the confession. If, in fact, the confession was the product of an illegal search and seizure, it would appear to follow that under the rationale of Mapp v. Ohio, supra, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, and Fahy v. State of Conn., 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171, such confession would be inadmissible in evidence.

Under the Jackson v. Denno decision, supra, which is, of course, binding upon us, the appellant was entitled to a reliable determination, as to the voluntariness of his confession, by a tribunal other than the jury charged with deciding his guilt or innocence. That...

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18 practice notes
  • State v. Charping, No. 23942
    • United States
    • United States State Supreme Court of South Carolina
    • December 7, 1992
    ...cause for the defendant's arrest that would justify a search made incident thereto existed at the time of arrest); State v. Cannon, 248 S.C. 506, 151 S.E.2d 752 (1966) (a capital case wherein the court remanded a rape conviction Page 97 [313 S.C. 163] for an independent determination of the......
  • State v. Torrence, No. 23403
    • United States
    • United States State Supreme Court of South Carolina
    • May 1, 1989
    ...111 (1970); State v. Bell, 250 S.C. 37, 156 S.E.2d 313 (1967); State v. Gamble, 249 S.C. 605, 155 S.E.2d 916 (1967); State v. Cannon, 248 S.C. 506, 151 S.E.2d 752 (1966); State v. Gamble, 247 S.C. 214, 146 S.E.2d 709 (1966); State v. Thomas, 248 S.C. 573, 151 S.E.2d 855 (1966); State v. Cai......
  • State v. Johnson, No. 65968
    • United States
    • United States State Supreme Court of Iowa
    • April 21, 1982
    ...389, 406, 427 A.2d 1169, 1177 (1981) (no error in denying motion where publicity detailed prior obscenity convictions); State v. Cannon, 248 S.C. 506, 516-18, 151 S.E.2d 752, 756-58 (1966) (no error in denying motion where publicity detailed prior larceny and assault convictions). See also ......
  • State v. Creech, No. 2109
    • United States
    • Court of Appeals of South Carolina
    • November 2, 1993
    ...mandate a new trial, if, in a soundly conducted collateral proceeding, Creech's confession is determined to be voluntary. State v. Cannon, 248 S.C. 506, 151 S.E.2d 752 (1966); See also State v. Primus, --- S.C. ----, 440 S.E.2d 128 (1994) (since Page 641 determination of whether appellant w......
  • Request a trial to view additional results
18 cases
  • State v. Charping, No. 23942
    • United States
    • United States State Supreme Court of South Carolina
    • December 7, 1992
    ...cause for the defendant's arrest that would justify a search made incident thereto existed at the time of arrest); State v. Cannon, 248 S.C. 506, 151 S.E.2d 752 (1966) (a capital case wherein the court remanded a rape conviction Page 97 [313 S.C. 163] for an independent determination of the......
  • State v. Torrence, No. 23403
    • United States
    • United States State Supreme Court of South Carolina
    • May 1, 1989
    ...111 (1970); State v. Bell, 250 S.C. 37, 156 S.E.2d 313 (1967); State v. Gamble, 249 S.C. 605, 155 S.E.2d 916 (1967); State v. Cannon, 248 S.C. 506, 151 S.E.2d 752 (1966); State v. Gamble, 247 S.C. 214, 146 S.E.2d 709 (1966); State v. Thomas, 248 S.C. 573, 151 S.E.2d 855 (1966); State v. Cai......
  • State v. Johnson, No. 65968
    • United States
    • United States State Supreme Court of Iowa
    • April 21, 1982
    ...389, 406, 427 A.2d 1169, 1177 (1981) (no error in denying motion where publicity detailed prior obscenity convictions); State v. Cannon, 248 S.C. 506, 516-18, 151 S.E.2d 752, 756-58 (1966) (no error in denying motion where publicity detailed prior larceny and assault convictions). See also ......
  • State v. Creech, No. 2109
    • United States
    • Court of Appeals of South Carolina
    • November 2, 1993
    ...mandate a new trial, if, in a soundly conducted collateral proceeding, Creech's confession is determined to be voluntary. State v. Cannon, 248 S.C. 506, 151 S.E.2d 752 (1966); See also State v. Primus, --- S.C. ----, 440 S.E.2d 128 (1994) (since Page 641 determination of whether appellant w......
  • Request a trial to view additional results

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