State v. Funderburke

• Decision Date: 19 November 1968
• Docket Number: No. 18842,18842
• Citation: 164 S.E.2d 309,251 S.C. 536
• Parties: The STATE, Respondent, v. Early FUNDERBURKE, Appellant.
• Court: South Carolina Supreme Court

Page 309

164 S.E.2d 309

251 S.C. 536

The STATE, Respondent, v. Early FUNDERBURKE, Appellant.

No. 18842.

Supreme Court of South Carolina.

Nov. 19, 1968.

John E. McCall, Cheraw, Frank E. Cain, Jr., Bennetsville, for appellant.

Solicitor Marion H. Kinon, Dillon, Asst. Solicitor J. Dupre Miller, Bennetsville, for respondent.

BUSSEY, Justice.

The appellant was convicted of the crime of rape, but with a recommendation of mercy by the jury, and sentenced to a term of thirty years. Appeal is from the order of the trial judge denying a motion, on several grounds, for a new trial. There was clearly prejudicial error below and we reverse.

During the early hours of November 1, 1966, appellant was arrested as a suspect. Later that morning, about 9 o'clock, two officers, without the benefit of a search warrant, searched the bedroom occupied by the suspect, obtaining and removing in the course of such search various articles, including a coat and a mask allegedly worn by the appellant at the time of the assault. Such mask and coat were introduced in evidence over the objection of the appellant.

Such admission was clearly erroneous. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Hill, 245 S.C. 76, 138 S.E.2d 829 (1964).

The State does not here contend that such articles were admissible, but nevertheless, does contend, for several reasons, that the judgment below should be affirmed. It is first contended that the single exception of the appellant does not contain an assignment of error in accordance with Rule 4, Section 6 of the Supreme Court Rules. Admittedly, the exception is not expertly or adroitly worded in strict compliance with the rule, but the error which appellant sought to assert is readily ascertainable. Moreover, the case is of sufficient gravity that this court would not be justified in refusing to consider the exception because of its failure to strictly comply with the rule, particularly where the prejudicial error below is obvious. State v. Griggs, 184 S.C. 304, 192 S.E. 360 (1937).

It is contended by the State that error in admitting the mask was cured by counsel for appellant cross-examining the prosecuting witness thereabout, without reserving appellant's rights under the objection to its admission. We need not discuss this contention because there was clearly prejudicial error in the admission into evidence of the coat, which error was not in any manner waived or cured.

With respect to the coat, it is first argued that admission thereof was harmless because the record clearly established appellant's guilt, even without the coat. The entire record is not before us, but the portion that is simply does not support that contention. It is further argued that the introduction of the coat as an exhibit constituted merely cumulative evidence, and, hence, did not constitute prejudicial error. This latter...