State v. Fuller, 16996

Citation227 S.C. 138,87 S.E.2d 287
Decision Date04 May 1955
Docket NumberNo. 16996,16996
PartiesThe STATE, Respondent, v. Raymond FULLER, Appellant.
CourtUnited States State Supreme Court of South Carolina

C. Yates Brown, J. C. Mooneyham, L. W. Perrin, Jr., James M. Kirby, Edward P. Perrin, Spartanburg, for appellant.

Solicitor J. Allen Lambright, Spartanburg, for respondent.

PER CURIAM.

The original opinion in this case was filed on August 4, 1954, and thereafter appellant petitioned for rehearing, which was granted for the purpose of reconsideration of his Exception No. 12 only. That opinion is set forth below except insofar as it deals with that exception and with Exception No. 13, which is indirectly involved; and as so set forth it shall stand as the judgment of this court on the issues therein referred to:

The appellant was tried and convicted for murder at the January, 1953, term of the General Sessions Court for Spartanburg County, and sentenced to death as provided by law. He appeals on fourteen (14) exceptions charging error to the trial court. The attorneys on both sides in their briefs deal with the exceptions in the form of thirteen questions. This Court for convenience adopts these questions.

1. Was the alleged confession of the defendant properly proven to be admissible in evidence?

The record reveals that in the absence of the jury the usual questions as to whether or not the defendant was threatened, intimidated or coerced in any manner; offered or promised anything, any inducement or hope of reward; that he did not have to make a statement, but that if he did such might be used against him, were propounded. Thereafter the Court itself further examined the witness along the same line. When the jury returned, substantially the same examination was made in its presence, whereupon the witness was permitted to testify to the alleged confession.

The Court in its instructions to the jury admittedly charged the law correctly as to confessions. Appellant by this exception primarily complains of the form of the questions propounded, contending that they are leading and merely state a conclusion, rather than the circumstances under which the alleged confession was obtained.

A confession is not admissible unless it is voluntary. If necessarily follows that the burden rests upon the State to show that it was voluntary, and that there is no presumption of law that it was voluntary. State v. Rogers, 99 S.C. 504, 83 S.E. 971. We see no objection to the form of the questions propounded. Each question contained a categorical inquiry into a substantive fact necessary to be affirmatively established by the State, before the alleged confession would be admissible as evidence.

The appellant had the right and the opportunity, both in the absence of the jury and in its presence, by either cross-examination or direct testimony, to question the admissibility of the alleged confession. We are satisfied from the record that the trial Judge carefully protected the rights of the appellant in the admission of the alleged confession and all statements made by him in connection with the offense.

2. Was it proper for the Solicitor to question a witness as to alleged testimony given by another person at a former trial of this defendant upon the same charge?

This exception complains of the cross-examination by the Solicitor of Dr. Samuel R. Kilgore, a witness for appellant, relative to questions propounded as to how he reached his conclusion as to the mentality of appellant.

On direct examination, this witness was asked:

'Q. Did you, in connection with your examination, have psychological tests made under your instructions? A. Yes, sir, I did.

'Q. And who made those tests? A. Mr. J. R. Hallum, our psychologist at the Mental Hygiene Clinic.

'Q. Dr. Kilgore, can you show a comparison between the report of a radiologist to a general practitioner or surgeon, and the report of a psychologist to a psychiatrist? A. Yes, a psychiatrist utilizes psychology testing much as an internist, or a general practitioner utilizes x-rays, radiology studies.

'Q. How would that compare, the accuracy of the psychologist test with the tests of a radiologist? A. In most instances I would say it was at least as reliable, if not more reliable.

'Q. Did you receive a report from the psychologist, Dr. Kilgore? A. I did.

'Q. Will you give us briefly the contents of that report? A. Yes, the first test that I shall report, I believe it was the first one administered, was an I. Q. test being given, the Belvue-Welchsler, and that is our most reliable test for adults. The result in that test gave an I. Q. of 8, which would mean that he had the learning ability of the average eight to nine year old child. We speak of that as the mental age.'

This witness further testified:

'Q. Dr. Kilgore, you recommended that this particular test be made of Raymond Fuller, did you not? A. Yes, sir, I recommended that it be made, based on the history of the head injuries.

'Q. Now, Doctor, under the Court's ruling you cannot disclose any part of the contents of that report, but I would like to ask you, did you receive a report from the party making that test? A. I did.

'Q. If you will, go ahead, Doctor, with your statement of your conclusions. A. My neurological examination revealed no evidence of disease, physical disease of the nervous system. My clinical impression with regard to this man was that he was mentally defective, and not insane. Psychological tests done to check * * *.'

It is too well settled to require the citation of authority, that more latitude is allowed on cross-examination than on direct examination of a witness and that the scope of such examination is largely discretionary with the trial court.

The psychologist, Hallum, testified at the former trial of appellant, but was not called as a witness in this trial.

On cross-examination of the witness, Dr. Kilgore, in this trial the Solicitor examined him, over appellant's objection, concerning testimony given by Hallum at the former trial, pertaining to the various tests given appellant by Hallum. It is apparent from the above-quoted testimony, to a considerable extent, the source of the information upon which Dr. Kilgore formed his opinion was psychological tests made under his instructions by Hallum.

The witness having given an opinion as to the mental condition of the appellant, it was proper for the Solicitor to inquire into the source of the information upon which he based his opinion for the purpose of determining the weight to be given to it.

3. Was it proper for the Solicitor to include in question employed in cross-examination statements of alleged facts not in evidence?

This exception questions the Solicitor's cross-examination of Dr. Kilgore in reference to questions pertinent to the mental condition of appellant. It appears from the medical testimony that 'experience' is a determining factor in arriving at the mental capacity of an individual. In his cross-examination of this witness, the Solicitor asked numerous questions as to 'experiences' of appellant, relative to mental capacity. Included in this line of questions was one to the effect that if appellant attended church, would not that be evidence that he knows right from wrong, both morally and legally? At the conclusion of the State's reply testimony, the Solicitor moved the Court to strike this question, as the State had failed to offer any testimony that appellant went to church. This the Court did and instructed the jury to disregard same.

As to the remaining questions, which appellant contends there was no testimony to substantiate, after a careful examination of the record, we are of the opinion that there is testimony and reasonable inferences to be drawn therefrom, that permitted the Solicitor propounding same.

The Court having eliminated the only question which the testimony did not warrant, this exception is without merit.

4 and 5. Did the charge of the trial Judge upon presumption of innocence violate the prohibition of Section 26 of Article 5 of the State Constitution in that it conveyed to the jury his opinion upon the evidence? Did the charge correctly state the law of this State?

The trial Judge in charging the jury stated:

'I charge you, Mr. Foreman and gentlemen of the jury, that it is a cardinal and important rule of the law of evidence that the defendant in a criminal trial, no matter what the enormity of the charge made against him may be, will always be presumed to be innocent of the crime for which he is indicted until his guilt has been proven by evidence satisfying you of that guilt beyond a reasonable doubt. This presumption of innocence does not cease when you retire, but it accompanies the defendant from the time of his arraignment throughout the trial, and until you have reached a verdict of guilt based upon evidence satisfying you of that guilt beyond a reasonable doubt. Our Supreme Court has said that that presumption of innocence is like a robe of righteousness placed about the shoulders of the defendant, and it remains with him and assigns him to that class, the innocent, until that presumptive robe of righteousness has been stripped from his person by evidence satisfying you of that guilt, of his guilt, beyond a reasonable doubt. So then, Mr. Foreman, that is not a mere legal theory. It is not just a legal phrase, and I say to you that is a substantial right which everyone is entitled to, that is the presumption of innocence, until you are satisfied from the evidence of his guilt beyond a reasonable doubt.'

The Court further charged:

'The defendant is entitled to any reasonable doubt arising in the whole case, or arising on any defenses that may have been set up by the defendant. If upon the whole case you have a reasonable doubt as to the guilt of the defendant, he is entitled to that doubt and would be entitled to an acquittal. Likewise, if you have a reasonable doubt as to whether or not the defendant has made out his defenses,...

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15 cases
  • State v. Plath
    • United States
    • South Carolina Supreme Court
    • October 7, 1981
    ...is allowed on cross examination than on direct examination and the scope of the examination is largely discretionary. State v. Fuller, 227 S.C. 138, 87 S.E.2d 287 (1955). In Fuller, the solicitor questioned the expert witness, a psychiatrist, about the testimony given by a psychologist who ......
  • State v. Robinson
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    • South Carolina Supreme Court
    • April 4, 1961
    ...be set aside because of unsubstantial errors not affecting the result. State v. Chasteen, 228 S.C. 88, 88 S.E.2d 880; and State v. Fuller, 227 S.C. 138, 87 S.E.2d 287. The exception here asserted is found to be without merit and is The appellant asserts that the Trial Judge committed error ......
  • State v. Bullock
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    • South Carolina Supreme Court
    • November 16, 1959
    ...and there is no presumption of law that it was voluntary. State v. Clinkscales, 231 S.C. 650, 99 S.E.2d 663, and State v. Fuller, 227 S.C. 138, 87 S.E.2d 287. We have also held that the mere fact that a confession is made while the accused is in the custody of an officer does not render it ......
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    ...of the trial judge on motions of this nature will not be disturbed in the absence of a showing of abuse of discretion. State v. Fuller, 227 S.C. 138, 87 S.E.2d 287. A review of the record fails to reveal that the trial judge abused his discretion in the instant Appellant's showing in suppor......
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