State v. Gamble

• Decision Date: 10 February 1966
• Docket Number: No. 18458,18458
• Citation: 146 S.E.2d 709,247 S.C. 214
• Parties: The STATE, Respondent, v. Robert Wayne GAMBLE, Appellant.
• Court: South Carolina Supreme Court

Page 709

146 S.E.2d 709

247 S.C. 214

The STATE, Respondent, v. Robert Wayne GAMBLE, Appellant.

No. 18458.

Supreme Court of South Carolina.

Feb. 10, 1966.

William H. Seals, Marion, Thomas E. Rogers, Florence, for appellant.

Sol. Richard G. Dusenbury, Florence, for respondent.

MOSS, Justice:

The Grand Jury of Marion County, at the 1963 October term of the Court of General Sessions, indicted Robert Wayne Gamble, the appellant herein, and charged him with (1) rape, (2) assault with intent to ravish, and (3) burglary. The indictment alleged that the crimes took place in Marion County, South Carolina, on October 15, 1963. The appellant being without counsel, the court appointed attorneys to represent him. Upon motion duly made and heard in Marion County, a change of venue was granted to Florence County.

This case came on for trial at the 1964 March term of the Florence County Court of General Sessions. The appellant made a motion to require the State to elect on which of the three counts in the indictment it would go to trial. This motion was granted and the State elected to go to trial upon the charge of rape, being the first count in the indictment. The appellant was convicted of rape and sentenced to death. Section 16-17, 16-72 of the 1962 Code of Laws of South Carolina. Following the conviction a motion for a new trial was made, heard and denied. Timely notice of intention to appeal to this Court was given.

Since this is a capital case, it is our duty in favorem vitae to examine the entire record to determine whether there were any errors in the trial below affecting the substantial rights of the appellant, even though such errors may not be sufficiently covered by the exceptions.

The appellant asserts that the Trial Judge committed error in refusing to order a new trial on the ground that the Solicitor, in his argument to the jury, made statements that were improper and prejudicial. We have held in a number of cases that one who seeks a new trial because of unfair, improper of prejudicial argument on the part of the prosecuting attorney should show (1) timely objection was interposed to the argument; (2) the substance at least of the objectionable language; (3) the failure of the court to sufficiently warn the jury not to consider the improper argument; and (4) that the result was to materially prejudice the right of the appellant to obtain a fair and impartial trial. State v. Robinson, 238 S.C 140, 119 S.E.2d 671. We are precluded in this case from considering the exceptions charging that improper argument was made to the jury by the Solicitor because the record does not support the charge made.

It appears from the evidence that the prosecutrix, a white woman, 69 years of age at the time of the trial, was a widow and lived with her maiden sister in the Scotch community of Marion County. The prosecutrix went to her bedroom at about 8:30 P.M. on the night of October 15, 1963. When she entered her bedroom she found a negro man behind the door and upon seeing him she screamed and her maiden sister immediately came to the room. The testimony is conclusive that this negro man remained in the bedroom or house all night. The prosecutrix said that she was reped three times during the night and twice the next morning. When the negro man left the home of the prosecutrix on the morning of October 16, 1963, he had $304.00 or $305.00 of her money. Immediately these elderly women went to the home of a sister who lived nearby. A physician was summoned. A subsequent examination of the prosecuting witness showed bruised areas in the vagina and fluid taken therefrom contained male human sperms. The evidence is conclusive that the prosecuting witness had been raped by a negro man.

The record shows that law enforcement officers were also summoned and a description of the prosecuting witness's assailant was furnished. Thereafter, about midday on Friday, October 18, 1963, the appellant was apprehended while running down a ditch or canal near the town of Mullins, about three miles from the home of the prosecutrix. At the time of his arrest he only had on a pair of shorts and a t-shirt and was barefooted.

Immediately following the arrest of the appellant he was taken to the Marion County jail. He was questioned very little on Friday afternoon and Saturday morning. He made no admissions as to any attack upon the prosecutrix or knowledge thereabout. It appears that on Saturday afternoon, October 19, 1963, that a billfold containing $304.00 in currency and cards, including a social security card having the appellant's name thereon, was found in the canal or ditch where the appellant was arrested. The billfold, with its contents, was turned over to the law enforcement officers.

A deputy sheriff testified that after he received the aforesaid billfold that he went to the cell where the appellant was confined and confronted him with it. He said that the appellant freely and voluntarily admitted that it was his billfold and that 'we had everything'. He further testified that the appellant admitted that he entered the home of the prosecutrix on the night in question and attacked her and stayed in the house with her and her sister until the following day, at which time he received the money contained in the billfold from the prosecutrix and then left the house. This witness also testified that the appellant was advised of his rights prior to making the confession at the time he was confronted with the billfold.

After the oral confession was made on Saturday, October 19, 1963, the appellant, on the next day, was taken to the South Carolina Law Enforcement Headquarters in Columbia, where he made a detailed confession which was reduced to writing and signed by him. A copy of such confession was given to the appellant and receipted for by him, in conformity with Sections 1-65 and 26-7.1 and 76-7.2 of the 1962 Code.

The appellant alleges that the Trial Judge erred in allowing the introduction of his confession because (1) it was not freely and voluntarily given; (2) that he was not advised that he could consult with counsel; (3) that the confession was not in the words of the appellant but was in the words of his interrogators; and (4) that so much of the confession as admitted the commission of other crimes, which were not pertinent to the charge of rape, should not have been admitted in evidence.

The question of whether a confession is voluntary is one which is addressed to the court in the first instance. If there is an issue of fact as to the voluntariness of a confession, it should be admitted and the jury under proper instructions allowed to make the ultimate determination as to its voluntary character and also its truthfulness. A confession is not admissible unless it is voluntary. It necessarily follows that the burden rests upon the State to show that it was voluntary and there is no presumption of law that it was. The mere fact that a confession in made while the accused is in custody does not render it inadmissible. However, the conduct of the officer obtaining the confession will be rigidly scrutinized, and the fact that it is made while the accused is under arrest is a circumstance along with the other facts and circumstances to be taken into consideration by the jury in determining its voluntariness. State v. Bullock, 235 S.C. 356, 111 S.E.2d 657; State v. Worthy, 239 S.C. 449, 123 S.E.2d 835; State v. Sharpe, 239 S.C 258; 122 S.E.2d 622.

Wnen the State offered evidence of the oral and written confessions of the appellant, an objection was made to such admission on the ground that he was not advised of his legal rights; he was not offered counsel and did not have counsel; the statement was given under duress and was not voluntary. The Trial Judge then excused the jury, and, in the absence thereof heard the testimony concerning the circumstances of the confessions. The testimony in behalf of the State was that the confessions of the appellant were freely and voluntarily given and he was not intimidated, abused or threatened in any manner. No evidence was offered in behalf of the appellant to the contrary. The procedure outlined in the case of State v. Sanders, 227 S.C. 287, 87 S.E.2d 826, had been followed, except the appellant had not availed himself, nor was he required so to do, of the opportunity through his own testimony or that of other witnesses to contradict the prima facie showing made by the State as to the voluntariness of his confessions. The Trial Judge admitted the confessions into evidence, holding that the State had made a prima facie showing that the confessions were freely and voluntarily made. The privilege of cross-examination was fully accorded to counsel for the appellant. This is a case where the facts concerning the circumstances surrounding the confessions are undisputed, the task is only to judge the voluntariness of the confessions based upon the clearly established facts. All of the evidence shows that the confessions made by the appellant were freely and voluntarily given. The jury, under appropriate instructions, were allowed to make the ultimate determination as to whether the said confessions were freely and voluntarily made.

The Sheriff of Marion County testified that he did not recall advising appellant that he was entitled to counsel but did advise him that anything he might say could be used against him. This witness also testified that the appellant never requested counsel. It is the position of the appellant that his confessions were inadmissible in evidence because he did not have the benefit of counsel at the time they were made. The constitutional right of the assistance of counsel does not generally require representation between the arrest and the arraignment. The question of the right to counsel depends largely on the circumstances of the particular case. In Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.E.2d 977, the Supreme Court of the...