State v. Grant

• Decision Date: 18 November 1941
• Docket Number: 15330.
• Parties: STATE v. GRANT et al.
• Court: South Carolina Supreme Court

19 S.E.2d 638

199 S.C. 412

STATE v. GRANT et al.

No. 15330.

Supreme Court of South Carolina

November 18, 1941

Writ of Certiorari Denied April 6, 1942. See 62 S.Ct. 942, 86 L.Ed.

Appeal from General Sessions Circuit Court, of Berkeley County; A L. Gaston, Judge.

Alchrist Grant, alias Pompey, and Cyrus Pinckney were convicted of assault with intent to ravish, and they appeal.

The order of Judge Grimball requested to be reported follows:

This cause comes now before this Court on motion of counsel for the defendants above named for an order granting a new trial.

I have heard the matter thoroughly argued by counsel for the defendants and by counsel for the State.

Inasmuch as the defendants are under sentence of death, I have following the "in favorem vitae" rule, carefully read and considered the entire record in the cause, and have given the matter careful consideration.

One ground of the motion is based upon asserted failure of a retained attorney to appear for and furnish representation to the defendants. It appears that this attorney had been employed on behalf of the defendant Grant immediately after his arrest and had conferred with the Solicitor about the case, but just before the trial term he notified the Court that he was not employed to try the case, but only to try to plead the defendants guilty, and that if the matter was to be tried he would not and did not appear for and represent the defendants. It is claimed on behalf of the defendants that this attorney was retained the night before the trial to appear at the trial, and was paid a fee to do so, and that his failure so to appear constitutes a ground upon which the judgment and sentence rendered may be set aside by the Court. Affidavits have been filed in the record by this attorney and his secretary and associate tending to show that he was not retained to appear in the trial of the case, and had refused to agree so to appear, but that he was retained and paid to furnish certain services outside of the Court, and that those employing him understood that he would not appear at the trial, and that he was not employed so to appear.

Being informed at the time of the arraignment that the attorney in question had notified the Solicitor that he would not and did not appear for the defendants if the case were to be tried, the Presiding Judge appointed two lawyers of the Berkeley Bar, one being the dean of that Bar in point of practice and the other a lawyer of more than twenty years experience, to appear for the defendants in the trial of their case, and these attorneys did appear for them. When the case was called for trial, the Court was not informed of the employment of any retained counsel to appear for the defendants at the trial, and neither the defendants nor any member of their families, nor anyone on their behalf, brought any such fact to the attention of the Presiding Judge or of any officer of the Court, or of any counsel for the prosecution.

Under these circumstances, whatever may be the merits of the contention between the retained attorney and those who employed him as to the terms of the employment and his alleged failure to carry the employment out, the Court committed no error in the conduct of the trial, and no basis is afforded in the showing for setting aside the verdict, judgment and sentence on this ground.

Other grounds upon which the motion is based assert that the Court-appointed counsel failed to furnish proper and efficient representation to the defendants. A careful consideration of the record compels me to a contrary conclusion. The counsel appointed by the Court appear from the record to have conducted the defense in a skillful and workmanlike manner, having due regard for the overwhelming and conclusive evidence presented against them. Their failure to achieve a better result was obviously due, not to any lack of zeal or skill on their part, but to the strength of the proof which the State presented against the defendants .

In the case of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, it was held that the failure of the trial Court to give a defendant reasonable time and opportunity to secure counsel was a clear denial of due process of law, and that in a capital case, where a defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the Court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law, and that that duty is not discharged by an assignment at such time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.

Considered in the light of these principles, and in the light of the provisions of Sections 978-980 of the Code of Laws of South Carolina, 1932, I am of the opinion that the trial was conducted in accordance with the applicable principles of law, and that the rights of the defendant were duly protected, and that no basis has been established warranting the granting of the motion on these grounds.

The remaining grounds of the motion charge that the defendants were denied equal protection of the laws because there were no negroes on the Grand Jury which indicted them or on the Petit Jury which convicted them, and that this was true because persons of the African Race had been systematically excluded from the jury box from which the Grand and Petit Juries were drawn in Berkeley County. In support of this contention there was filed with the motion an affidavit of counsel for the defendants containing figures as to the relative white and negro populations in Berkeley County as shown by the 1930 census, the 1940 census figures not then being available, and this affidavit also shows that at the time of the making of the affidavit the registration books of Berkeley County contained the name of one negro who had been registered prior to the year 1940, and the names of three more who registered during the year 1940.

In reference to this issue, the State has filed the affidavit of the two surviving members of the Board of Registration for Berkeley County, the other member having recently died, which affidavit shows that from the beginning of the re-registration in January, 1938, through January, 1940, only one negro applied to the Board for a registration certificate and that such certificate was immediately granted to him, and that no other member of the negro race made application for a certificate of registration to the Board during that period, and that none were refused registration during said period. The State also filed affidavit of the Jury Commissioners of Berkeley County which shows that the jury box out of which jurors for the year 1940 were drawn was prepared by the Commissioners in December, 1939, as provided by Section 608 of the 1932 Code of Laws, as amended by Act appearing in the Acts of 1939, 41 St. at Large, at page 332. Another affidavit, made by the Clerk of Court for Berkeley County, filed by the State shows that the records of the Board of Registration are kept in the Clerk's office, and that he has examined the same, and that as far as he is able to ascertain therefrom only one negro was registered as a qualified elector in Berkeley County in December 1939, when the jury list for the year 1940 was prepared.

In Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 580, 79 L.Ed. 1074, the Court quoted the following from Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 44 L.Ed. 839, in relation to exclusion from service on grand juries: "Whenever by any action of a state, whether through its Legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States." And it was also stated that: "*** although the state statute defining the qualifications of jurors may be fair on its face, the constitutional provision affords protection against action of the state through its administrative officers in effecting the prohibited discrimination."

In Pierre v. Louisiana; 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757, the evidence was held sufficient to establish that negroes had been systematically and purposely excluded from the Grand Jury and that the exclusion was not due to their failure to possess the statutory qualifications of jurors.

It will be observed that it is undisputed that at the time the 1940 jury list was made up, only one negro had registered as a qualified elector in Berkeley County, and under the applicable provision of the Constitution of South Carolina, he was the only negro in the County who was eligible for jury service. The chance of this single qualified negro juror being drawn upon the 1940 Grand Jury, or upon the venire of the Petit Jury, for that trial term, was infinitely less mathematically than the chance of his not being so drawn. The showing made convinces me that no other negro had applied prior to the year 1940 for registration; that the officials had not denied registration to any member of the negro race; and that there is no evidence tending to show any exclusion from jury service of the members of that race, systematically or otherwise. On the contrary, it appears that the jury lists and the jury box were made up, in the manner provided by law, from the qualified electors of the County, who had to be registered in order to be qualified electors, and that both the Board of Registration and the Jury...