State v. Gilstrap, No. 15690.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtFISHBURNE, Justice
Citation32 S.E.2d 163
PartiesSTATE. v. GILSTRAP.
Docket NumberNo. 15690.
Decision Date10 November 1944

32 S.E.2d 163

STATE.
v.
GILSTRAP.

No. 15690.

Supreme Court of South Carolina.

Nov. 10, 1944.


[32 S.E.2d 163]

Appeal from General Sessions Circuit Court of Greenville County; J. Robert Martin, Jr., Judge.

Charles Gilstrap was convicted of rape, and he appeals.

Affirmed.

John M. Schofield, of Greenville, for appellant.

W. A. Bull, Sol., of Greenville, for respondent.

[32 S.E.2d 164]

FISHBURNE, Justice.

The appellant, Charles Gilstrap, a young white man, was tried upon an indictment charging him with rape. The victim was a white girl eleven years of age. He was found guilty, and the trial Court sentenced him to be electrocuted as provided by law.

There are several assignments of error. The first group raises the issue that the trial Judge erred in refusing to grant a new trial on account of alleged intemperate and inflammatory language used by the Solicitor in his closing argument to the jury. It is contended by counsel for appellant that the prosecuting attorney made the following statements which were prejudicial to the rights of the defendant:

"(1) If this boy's color were black it wouldn't take you fifteen minutes to return a verdict of guilty, and he is not entitled to any more consideration than if his color were black.

"(2) Mr. Schofield asked the little girl if the defendant's sex organ entered her sex organ. There is a limit to an attorney's duty to his client, and Mr. Schofield exceeded that duty.

"(3) Place yourself in the position that this girl was your own daughter, and go in and vote as the it were your own daughter who had been raped."

The record shows that the alleged comments were not objected to when made; no ruling thereon was requested from the trial Judge; and the matter was brought to his attention for the first time on appellant's motion for a new trial upon the ground that the quoted statements deprived defendant of a fair and impartial trial. No record was made of the alleged objectionable remarks. They are set forth by counsel for appellant in his brief as recalled by him. But the Solicitor's version is not substantially different. The Court was not requested to instruct the jury to disregard the statements; nor was it asked to declare a mistrial. The proper procedure in a matter of this kind should have been that outlined in State v. Meehan, 160 S.C. 111, 158 S.E. 151, 158, where the rule is stated as follows:

"The conduct of a trial must be left largely to the discretion of the presiding judge. One seeking a new trial because of unfair or improper argument on the part of counsel for the successful party should show these things: (1) That 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 losing litigant to obtain a fair and impartial trial."

However, in view of the fact that this is a capital case, we will undertake to pass upon the question presented just as though the foundation therefor had been duly made. The trial Judge in favorem vitae adopted the same course in the full consideration he gave to the motion.

The Solicitor disagrees somewhat with appellant's counsel with reference to the exact phraseology of the remarks he made to the jury, wherein he is charged with having injected the racial question into the case. His recollection is that he made this statement to the jury: "Gentlemen, in my opinion, if this were a negro I don't believe the jury would be out long, fifteen or twenty minutes, in arriving at a just verdict in this case."

There are cogent reasons why appellate courts should be careful and critical in recognizing alleged improper statements of counsel in argument as affording ground for reversal. Every case must necessarily depend upon its own particular circumstances. It would seem consistent with the ordinary principles upon which justice is administered, that if in this case the statements complained of were material, and this Court can see, from an examination of the evidence, that they were likely to and probably did wrongly influence and mislead the jury to return a verdict against the defendant to his manifest prejudice, this Court should redress the wrong by reversing the judgment and granting a new trial. But we do not think upon a consideration of the entire evidence that this is such a case. The trial Court upon mature consideration took this view, and we concur in it.

There may be cases, of course, in which the statements* of counsel are so prejudicial and flagrant that neither admonition to counsel nor direction to the jury can adequately overcome their injurious effects. Price v. American Agricultural Chemical Co, 178 S.C. 217, 182 S.E. 637; State v. McGill, 191 S.C. 1, 3 S.E.2d 257.

The rule followed in this State, and we think in most jurisdictions, is that if upon the whole case, it appears to the

[32 S.E.2d 165]

Court that the defendant was prejudiced by the language used, as the result of which he did not have a fair and impartial trial, it would be the duty of the Court to reverse the case and remand it for a new trial. However, as was said in State v. Duncan, 86 S.C. 370, 68 S.E. 684, 685, Ann. Cas. 1912A, 1016: "If the record shows that no other verdict could have been found upon any reasonable view of the evidence, we are safe in concluding that no harm was done." See State v. Evans, 202 S.C. 463, 25 S.E.2d 492.

The question whether the statements of the prosecuting attorney were fairly calculated to improperly influence the jury, resulting in manifest prejudice, depends in large measure upon the peculiar facts and circumstances of the case.

It seems to us clear that in the quoted statement, the prosecuting attorney in his zeal, and no doubt deeply moved by the enormity of the crime, overstepped the bounds of legitimate argument. There was no justification in this case for making any reference to the negro race, or any member of it. All citizens in this country stand upon an equality before the bar of justice, and the State does not and should not rely upon prejudice, passion, or sympathy for the enforcement of its laws. All of the parties involved in this case are white people; the defendant is a white man, and the prosecutrix is a white girl. The issue here is not whether the defendant was a white man or a colored man, but whether the evidence satisfied the jury that the defendant was guilty as charged.

In a case less certainly made out than is the one here presented, the remarks of the Solicitor would have raised a serious question as to the propriety of granting a new trial; and but for the fact that the result, as we...

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22 practice notes
  • United States v. Antonelli Fireworks Co., No. 192.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 2, 1946
    ...United States v. Domres, 7 Cir., 142 F. 2d 477, 479; Simmons v. United States, 6 Cir., 300 F. 321; cf. State v. Gilstrap, 205 S.C. 412, 32 S.E.2d 163, 165, 12b Judge Rose in Bray v. United States, 4 Cir., 289 F. 329, 333, 334. See also cases cited in note 12. 13 See my dissenting opinion in......
  • State v. Elkins, No. 23939
    • United States
    • United States State Supreme Court of South Carolina
    • January 18, 1993
    ...494, 388 S.E.2d 816 (1990); (Issue 2): State v. Bell, 302 S.C. 18, 393 S.E.2d 364 (1990); (Issue 3): State v. Gilstrap, 205 S.C. 412, 32 S.E.2d 163 (1944); (Issue 5): State v. Ciesiellski, 213 S.C. 513, 50 S.E.2d 194 (1948); State v. Massey, 267 S.C. 432, 229 S.E.2d 332 (1976); (Issue 6): S......
  • Simmons v. State, No. 24795.
    • United States
    • United States State Supreme Court of South Carolina
    • June 1, 1998
    ...caused by these remarks; therefore, the defendant was entitled to a new trial. Id. Compare with State v. Gilstrap, 205 S.C. 412, 32 S.E.2d 163 (1944) (evidence of guilt was overwhelming and the instruction was adequate to cure the improper argument; thus, the defendant was not Here, the tri......
  • Henry v. State, Opinion No. 25861 (SC 8/30/2004), Opinion No. 25861.
    • United States
    • United States State Supreme Court of South Carolina
    • August 30, 2004
    ...are well calculated to bring about this result. White, 246 S.C. at 506, 144 S.E.2d at 482 (quoting State v. Gilstrap, 205 S.C. 412, 32 S.E.2d 163 (1944), where the Court condemned an argument in a death penalty case in which the solicitor urged jurors to "[p]lace yourself in the position th......
  • Request a trial to view additional results
22 cases
  • United States v. Antonelli Fireworks Co., No. 192.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 2, 1946
    ...United States v. Domres, 7 Cir., 142 F. 2d 477, 479; Simmons v. United States, 6 Cir., 300 F. 321; cf. State v. Gilstrap, 205 S.C. 412, 32 S.E.2d 163, 165, 12b Judge Rose in Bray v. United States, 4 Cir., 289 F. 329, 333, 334. See also cases cited in note 12. 13 See my dissenting opinion in......
  • State v. Elkins, No. 23939
    • United States
    • United States State Supreme Court of South Carolina
    • January 18, 1993
    ...494, 388 S.E.2d 816 (1990); (Issue 2): State v. Bell, 302 S.C. 18, 393 S.E.2d 364 (1990); (Issue 3): State v. Gilstrap, 205 S.C. 412, 32 S.E.2d 163 (1944); (Issue 5): State v. Ciesiellski, 213 S.C. 513, 50 S.E.2d 194 (1948); State v. Massey, 267 S.C. 432, 229 S.E.2d 332 (1976); (Issue 6): S......
  • Simmons v. State, No. 24795.
    • United States
    • United States State Supreme Court of South Carolina
    • June 1, 1998
    ...caused by these remarks; therefore, the defendant was entitled to a new trial. Id. Compare with State v. Gilstrap, 205 S.C. 412, 32 S.E.2d 163 (1944) (evidence of guilt was overwhelming and the instruction was adequate to cure the improper argument; thus, the defendant was not Here, the tri......
  • Henry v. State, Opinion No. 25861 (SC 8/30/2004), Opinion No. 25861.
    • United States
    • United States State Supreme Court of South Carolina
    • August 30, 2004
    ...are well calculated to bring about this result. White, 246 S.C. at 506, 144 S.E.2d at 482 (quoting State v. Gilstrap, 205 S.C. 412, 32 S.E.2d 163 (1944), where the Court condemned an argument in a death penalty case in which the solicitor urged jurors to "[p]lace yourself in the position th......
  • Request a trial to view additional results

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