State v. Green

• Decision Date: 09 October 1922
• Docket Number: 11027.
• Citation: 114 S.E. 317,121 S.C. 230
• Parties: STATE v. GREEN.
• Court: South Carolina Supreme Court

114 S.E. 317

121 S.C. 230

STATE v. GREEN.

No. 11027.

Supreme Court of South Carolina

October 9, 1922

Appeal from General Sessions Circuit Court of Sumter County.

Wilkie Green was convicted of attempted rape, and he appeals. Affirmed.

Clifton & Wood, of Sumter, for appellant.

F. A McLeod, Sol., and Jennings & Harby, all of Sumter, for the State.

FRASER J.

The appellant was tried and convicted for attempted rape. A little girl about 12 years old was sleeping in a room adjoining the room in which her father and mother were sleeping. In the night she was waked up by the presence of a knee of some one on her body. She called for her father, and some one jumped from her bed and ran through another room and went out of the window. Her father responded promptly to her call for help, and found a window in the adjoining room open and some footprints on the ground under the window. The sheriff was notified, and went to the place of the crime the next morning. When he got there he was handed a sleeve button that had been found that morning on the bed on which the little girl had been sleeping, when attacked. The sheriff was accompanied by his deputy and two rural policemen. They took the sleeve button to a cotton house nearby, and showed it to some men and boys there, and asked if any of them knew anything about the ownership of the cuff button referred to as the "sharp button." They all denied any knowledge of it. The appellant was one of the crowd, and in a few minutes appellant left the crowd and walked in the direction of his home. Some one called to him to come back and help with the loading of the cotton. The appellant refused to return, saying that he was going for his breakfast. The sheriff and his posse then hurried to the home of the appellant, and got there before he did. When the appellant got to his home, he went into the house, followed by the sheriff and his posse. The appellant walked through the front room into another room and shut the door. One of the rural policeman opened the door and went in. He found the appellant working with the sleeve of a shirt and had something in his hand. The policeman made him open his hand and took from his hand another sleeve button called herein the "round button." They then arrested the appellant, and took him to the house of the little girl, and told him to take off his shoes and put his foot in the track. The foot fit the track.

On the trial of the case, evidence was admitted as to the track, a statement made by another boy in the presence of the appellant, and also the cuff button taken from the accused. All of this was admitted over objection. The presiding judge at first admitted the testimony as to the tracks, but later, coming to the conclusion that he had made a mistake as to the evidence as to the tracks, frankly stated that he had made a mistake, and carefully instructed the jury to disregard the evidence as to the tracks. The appellant did not go on the stand, but moved for a direction of a verdict of not guilty. This was refused, and the appellant was convicted and appealed.

I. The first allegation of error we will consider is as to the evidence in reference to the tracks. It is unprofitable to consider the effect of striking out incompetent evidence. The rule is too clear to require the citation of authority that the error in admitting incompetent testimony is cured by a clear statement by the trial judge, and instruction to the jury to disregard the incompetent evidence. The exception that raises this question is overruled.

II. The next question to be considered is the evidence in regard to the cuff button, taken from the appellant by force and before the appellant was arrested, without a search warrant. In State v. Atkinson, 40 S.C. 371, 18 S.E. 1024, 42 Am. St. Rep. 877, we find: "The question now presented for our decision is not whether the persons who found the pieces of paper in the room of the defendant, John Atkinson, violated any of his legal rights by entering his room without authority, but whether the papers there found could be offered in evidence in this case; for, while it may be possible that it was a technical trespass to enter his room without authority, yet it does not by any means follow that the pieces of paper there found could not be offered in evidence. For as is said in 1 Greenleaf on Evidence, § 254, a: 'It may be mentioned in this place that, though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.' "

This was quoted with approval in State v. McIntosh, 94 S.C. 441, 78 S.E. 327. It is said, however, that a later case has overruled these cases, to wit, Blacksburg v. Beam, 104 S.C. 146, 88 S.E. 441, L. R. A. 1916E, 714. State v. Harley, 107 S.C. 307, 92 S.E. 1034, construes the case of Blacksburg v. Beam and distinctly holds that it is not in conflict, and is based upon other grounds.

We are told that the case of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, is in conflict with the Atkinson and McIntosh Cases and we should overrule our cases on this subject. A careful study of the Weeks Case will show, not only that it does not conflict with our cases, but sustains them. Weeks was indicted in the District Court for the Western District of Missouri. His rooms were searched without warrant, and evidence of the crime taken from his rooms. Weeks brought his action to recover his property illegally seized. The District Court ordered a return of all papers, except those to be used in the prosecution of Weeks, and these papers the government was allowed to keep and use. From this order Weeks appealed. The Supreme Court, in its opinion by Mr. Justice Day, says:

"It is thus apparent that the question presented involves the

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