State v. Green

• Decision Date: 07 November 1951
• Docket Number: No. 16557,16557
• Citation: 220 S.C. 315,67 S.E.2d 509
• Parties: STATE v. GREEN.
• Court: South Carolina Supreme Court

Page 509

67 S.E.2d 509

220 S.C. 315

STATE v. GREEN.

No. 16557.

Supreme Court of South Carolina.

Nov. 7, 1951.

George W. Keels, Florence, for appellant.

J. Reuben Long, Sol., Frank Thompson, Conway, for respondent.

FISHBURNE, Justice.

The appellant, Oscar Green, was tried for murder. He was convicted of manslaughter, and his sentence was fixed at fifteen years imprisonment in the state penitentiary. From this judgment he appeals. The appeal is based upon the action of the trial judge following the rendition of the verdict, in requesting the jury to return to the jury room and make a recommendation as to the quantum of punishment.

Immediately after the verdict of guilty was published, the presiding judge made this statement to the jury: 'Gentlemen, while you have no control over the sentence in this case--it is in the discretion of the court, from two to 30 years; and while ordinarily I don't bother the jury to make any recommendation and whatever you do in this case would be a mere recommendation because I can disregard it, but I am going to ask you to go back into the room and make a recommendation to me as to the sentence that you would propose in this case. As I say, I don't have to follow it. I don't tell you I will. But I would like to have the benefit of your recommendation and this is the first time I have ever done that, too. Go back in the room and make me a recommendation, write me down a recommendation on this yellow sheet I am going to pass to you. Keep in mind, gentlemen, the sentence can be from two to 30 years. I would like to have your idea.'

The jury then returned to their room, and shortly thereafter came out with their recommendation written on a yellow sheet of paper,--that the appellant should be sentenced to fifteen years imprisonment. Upon receipt of the recommendation, the court addressed the prisoner and imposed sentence as follows: 'The jury has recommended that you be given 15 years and while that is not binding on me, I so told them at the time, I didn't mislead them, I am going to follow their recommendation. The sentence should be imprisonment at hard labor in the State Penitentiary for a period of 15 years.'

It is urged as error that the discretion of the jury as to the quantum of punishment imposed was substituted for the discretion of the court; and appellant argues that the case should be remanded to the General Sessions Court of Horry County for sentence to be imposed in accordance with law.

Section 1107 of the 1942 Code prescribes that the punishment for manslaughter shall not exceed thirty years nor be less than two years imprisonment at hard labor in the penitentiary. The foregoing provision necessarily implies that the trial judge is to exercise discretion in imposing sentence within the limitation fixed by the statute.

In the absence of statute, a majority of the American cases, including our own, lay down the principle that where the court must determine the punishment to be imposed, either on the finding of the jury or on a plea of guilty, it is correct practice to hear evidence, by affidavit or otherwise, in aggravation or mitigation as the case may be. Annotation, 77 A.L.R. 1211.

We have held that with the view of fixing the sentence to be imposed upon a defendant, it is proper for the trial judge, in open court, in the presence of the defendant, to inquire into any relevant facts in aggravation or mitigation of punishment. State v. Bodie, 213 S.C. 325, 49 S.E.2d 575; State v. Brandon, 210 S.C. 495, 43 S.E.2d 449; State v. Adcock, 194 S.C. 234, 9 S.E.2d 730; State v. Reeder, 79 S.C. 139, 60 S.E. 434, 14 Ann.Cas. 968. And see to the same effect State v. Rickenbaker, 138 S.C. 24, 135 S.E. 651.

The court said in State v. Rickenbaker, 138 S.C. 24, 135 S.E. 651, 652: 'We think the judge should try to get, in open court, in the presence of the defendant, information about the case and other proper facts to help him to intelligently pass a proper sentence.'

In State v. Reeder, 79 S.C. 139, 60 S.E. 434, 435, 14 Ann.Cas. 968, when the prisoner was called for sentence, the presiding judge permitted th solicitor to read two affidavits tending greatly to aggravate the crimine of manslaughter, for which the defendant was convicted. The court held that it was not error to admit the affidavits, saying that by statute the trial judge was given discretion in imposing sentence, and 'any reasonable means by which his mind can be enlightened should not be prohibited.' The court went on to say: 'The circuit judge merely permitted himself to be informed as to the character of the accused and the circumstances of the crime, so that he might be able to exercise his discretion intelligently and pronounce a just sentence--a privilege of his in the exercise of which he doubtless should use the utmost caution.'

After a diligent search, we have been unable to find any case in our reports where the court following a verdict of guilty has requested the trial jury to retire to their room and return with a recommendation as to the degree of punishment. Nor have we been able to find a similar case from any other jurisdiction. See Annotations, 17 A.L.R. 1117, 87 A.L.R. 1367, 138 A.L.R. 1230. All of the cases hereinabove cited authorize the court, before imposing sentence, to hear evidence with reference to any relevant facts in aggravation or mitigation of punishment, in open court, and in the presence of the defendant. But a different situation is presented when the trial jury, after a verdict of guilty, retires to the privacy of the jury room, upon the direction of the court, for the purpose of discussing among themselves the auantum of punishment. We have no statute in this state authorizing this procedure.

The jury, when the verdict was rendered in open court, had discharged their full duty under oath, and had no other connection with the case. This recommendation standing alone was ineffective, under our decisions, to inform the court as to the character of the accused, the circumstances of the crime, or any facts which would assist him in passing a just sentence. The jury had nothing to do with the question of punishment, but only with that of guilt. The court alone has the power and discretion to fix the punishment, and in our opinion the jury cannot infringe on this prerogative by any recommendation, in the absence of statute,--either on its own initiative or by invitation of the court.

While we have no doubt that the course pursued...