State v. Davis

Citation239 S.C. 280,122 S.E.2d 633
Decision Date14 November 1961
Docket NumberNo. 17848,17848
PartiesSTATE, Respondent, v. Fred G. DAVIS, Appellant.
CourtUnited States State Supreme Court of South Carolina

Ben S. Carter, W. Brantley Harvey, Beaufort, for appellant.

Solicitor Randolph Murdaugh, Hampton, for respondent.

LEGGE, Justice.

At regular term of the Court of General Sessions for Beaufort County, convened on June 22 and adjourned on June 25, 1959, a true bill was returned on an indictment charging appellant with rape. On the first day of a special term of that court, convened on June 29, 1959, he was tried and convicted; and thereafter, on July 2, 1959, his motion for new trial having been denied, he was sentenced to death. His appeal charges error:

1. In that notice of the order calling the special term and of the drawing of the jury for that term had been published less than ten days prior to the convening of that term;

2. In that the trial judge permitted the solicitor, in his examination of the prosecutrix, to ask leading questions;

3. In the admission of certain testimony; and

4. In improper and prejudicial argument by the solicitor.

In the light of the circumstances of the trial, apparent from the record, we shall consider first the charge directed to the so-licitor's argument before the jury. Appellant, a white man twenty-four years old, serving in the armed forces of the United States and stationed at the Marine Corps Air Base near Beaufort, was charged with having raped a Negro woman forty-seven years old, at about eleven o'clock at night, in the business alongside one of the public streets of the city. At the same term of the court at which the grand jury acted upon the indictment against him, it also returned a true bill on an indictment charging one Israel Sharpe, a Negro, with assault with intent to ravish a young white woman, the wife of a member of the armed forces. As before mentioned, appellant was tried on the opening day of the special term, June 29. On the following day Sharpe was tried and convicted and thereafter, on July 2, he was sentenced to death.

At the trial of this case, as in the trial of Sharpe that followed it, a large number of spectators was present; the comments of the trial judge after sentencing appellant indicate that there had been considerable discussion in the press concerning this case; the record of the trial reveals that newspaper photographers and television cameramen from distant cities were permitted to take pictures in the court room during the trial of both this and the Sharpe case, a practice our disapproval of which, expressed in the opinion in State v. Sharpe, S.C., 122 S.E.2d 622, need and be reiterated here. One would be naive indeed not to recognize that the pendency of these two cases, for trial at the same special term, was a matter of unusual interest to the people of Beaufort County, and that justice to each of these defendants clearly demanded that his trial be conducted calmly, dispassionately and, above all, without emotional appeal.

Appellant charges, and the State does not deny, that in his closing argument to the jury the solicitor made the following statement:

'I have one or more similar cases to the one being tried, to be brought up later in this court, and if you turn this defendant loose you might as well be turning these other defendants loose also, because if you turn this man loose I'm going to turn the others loose.'

The reference was obviously to the impending trial of Sharpe; and the plain threat was a nolle prosequi in that case. In the circumstances before detailed, it would be hard to conceive of a statement more likely to excite the emotions of the jury and to coerce a conviction. The solicitor should prosecute vigorously; he must prosecute fairly, for the concern of the state, whose representative he is, is not that a defendant shall be convicted, but that justice shall be done. State v. McGill, 191 S.C. 1, 3 S.E.2d 257; State v. King, 222 S.C. 108, 71 S.E.2d 793; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734.

Upon such argument, appellant's counsel would have been fully justified had he moved for an order discharging the jury and declaring a mistrial. He did not do so, but objected to 'this line of talk' as having nothing to do with the issues in the case being tried. And the trial judge, agreeing, stated to counsel that the case would be tried from the evidence as adduced on the witness stand and the law as given by the trial judge to the jury, and that no other case had anything to do with it. We gravely doubt that the evil influence upon the jury of the solicitor's statement before quoted was dispelled by so weak a protest and by such mild judicial action. Being thus in doubt, we must reverse the judgment and remand this case for a new and fair trial, free from improper influences. Cf. Berger v. United States, supra.

The question presented by the first assignment of error is now academic and is not likely to arise again in the next trial. We do not decide it, but note in passing that statutes prescribing the time and manner of drawing jurors are directory, not mandatory, and that irregularity in that regard affords no basis for quashing the venire, absent a showing of prejudice. State v. Smith, 200 S.C. 188, 20 S.E.2d 726; State v. Harreld, 228 S.C. [239 S.C. 285] 311, 89 S.E.2d 879; State v. Livingston, 233 S.C. 400, 105 S.E.2d 73.

The remaining questions we shall discuss briefly in order that our view of them may serve as a guide should either of them arise in the course of the new trial.

By his second assignment of error appellant charges that the trial judge erred in permitting the solicitor to ask leading questions of the prosecuting witness in bringing out...

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11 cases
  • State v. Copeland
    • United States
    • South Carolina Supreme Court
    • 10 November 1982
    ...his closing argument at the sentencing phase of the trial. We disagree. "While the solicitor should prosecute vigorously, State v. Davis, 239 S.C. 280, 122 S.E.2d 633, his duty is not to convict a defendant but to see justice done. State v. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976). The so......
  • State v. Hatcher
    • United States
    • Louisiana Supreme Court
    • 29 January 1979
    ...1948); State v. Beaulieu, 116 R.I. 575, 359 A.2d 689 (1976); Setzer v. State, 29 Md.App. 347, 348 A.2d 866 (1975); State v. Davis, 239 S.C. 280, 122 S.E.2d 633 (1961). The lack of consent by other victims is not probative of lack of consent by the complainant of the charged offense. Lovely ......
  • State v. Plath
    • United States
    • South Carolina Supreme Court
    • 7 October 1981
    ...that the death penalty be imposed. The same solicitor made an almost identical mistake twenty years ago in State v. Davis, 239 S.C. 280, 122 S.E.2d 633 (1961). There, the solicitor said if the jury turned the defendant accused of rape loose, he would have to turn loose others also accused o......
  • State v. Bell
    • United States
    • South Carolina Supreme Court
    • 3 May 1988
    ...that the argument was proper. Similarly, Bell's reliance on State v. Plath, 277 S.C. 126, 284 S.E.2d 221 (1981) and State v. Davis, 239 S.C. 280, 122 S.E.2d 633 (1961) is misplaced. In Plath, the Solicitor stated in closing argument that he would never ask for the death penalty again if the......
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