State v. Harper, 18816

• Decision Date: 12 August 1968
• Docket Number: No. 18816,18816
• Citation: 162 S.E.2d 712,251 S.C. 379
• Court: South Carolina Supreme Court
• Parties: The STATE, Appellant, v. Clara Lou HARPER, Respondent.

Page 712

162 S.E.2d 712

251 S.C. 379

The STATE, Appellant, v. Clara Lou HARPER, Respondent.

No. 18816.

Supreme Court of South Carolina.

Aug. 12, 1968.

Daniel R. McLeod, Atty. Gen., Joseph C. Coleman, Emmet H. Clair, Asst. Attys. Gen., Columbia, W. H. Ballenger, Solicitor, Anderson, for appellant.

G. Ross Anderson, Karl L. Kenyon, Anderson, for appellant.

LEWIS, Justice.

The question to be decided in this appeal is whether the ruling of the United States Supreme Court in the recent case of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, renders constitutionally invalid the South Carolina statutory provisions relating to the imposition of the death penalty for murder. The matter is here on appeal by the State from an order quashing an indictment for murder against the defendant upon the ground that the penalty provisions of our applicable statutes were unconstitutional under the test laid down in Jackson.

The crime of murder is a common law offense, (State v. Coleman, 8 S.C. 237; State v. Bowers, 65 S.C. 207, 43 S.E. 656; State v. Wilson, 104 S.C. 351, 89 S.E. 301); and was usually punishable under the common law by death, 24B C.J.S. Criminal Law § 1985. However, the punishment is now prescribed by statute.

There are two statutes in question, Section 16--52 of the 1962 Code of Laws, setting forth the punishment for murder, and Act No. 864 of the 1962 Acts of the General Assembly, 52 Stat. 2155 (now Section 17--553.4, 1967 Supplement to the 1962 Code of Laws), relating to guilty pleas. They are as follows:

Section 16--52. Punishment for murder.--Whoever is guilty of murder shall suffer the punishment of death; provided, however, that in any case in which the prisoner is found guilty of murder the jury may find a special verdict recommending him to the mercy of the court, whereupon the punishment shall be reduced to imprisonment in the Penitentiary with hard labor during the whole lifetime of the prisoner.

Section 17--553.4. Sentencing in cases of guilty pleas.--In all cases where by law the punishment is affected by the jury recommending the accused to the mercy of the court, and a plea of guilty is accepted with the approval of the court, the accused shall be sentenced in like manner as if the jury in a trial had recommended him to the mercy of the court.

The decision in Jackson involved the penalty provisions of The Federal Kidnaping Act (18 U.S.C., Section 1201(a)), which provides: 'Whoever knowingly transports in interstate * * * commerce, any person who has been unlawfully * * * kidnaped * * * and held for ransom * * * or otherwise * * * shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.' The court there pointed out: 'This statute thus creates an offense punishable by death 'if the verdict of the jury shall so recommend.' The statute sets forth no procedure for imposing the death penalty upon a defendant who waives the right to jury trial or upon one who pleads guilty.' And further stated: 'Under the Federal Kidnaping Act, therefore, The defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die.' (Emphasis added).

The question decided in Jackson was thus stated by the court: 'Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury.' That question was answered by a holding that 'the inevitable effect of any such provision, is of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.' The death penalty provisions of the Federal Kidnaping Act were, therefore, declared unconstitutional because the death penalty under the Act was 'applicable only to those defendants who assert the right to contest their guilt before a jury.'

The question before us then is whether the provisions of our statutes render the death penalty for murder in South Carolina applicable only to those defendants who assert the right to plead not guilty. If they do, then the Jackson decision renders the death penalty provisions of the statutes in question unconstitutional in so far as they effect such result. On the other hand, if they do not so operate, the ruling in Jackson does not apply.

Section 16--52, in its present form, was enacted in 1894, the proviso contained therein being adopted as an amendment to Section 2454 of the General Statutes of 1882. Act No. 530, Acts of 1894. Prior to the 1894 amendment the only punishment prescribed by our statutes for murder was death.

Under 16--52, the punishment for murder is death unless a jury finds a special verdict recommending the defendant to the mercy of the court, in which event the punishment is life imprisonment. This section makes no special provision for a plea of guilty, although such a plea is not precluded. A plea of guilty affords no automatic impunity from the death penalty. On the contrary, the one who pleads guilty, as well as the one who pleads not guilty and is found guilty by the jury, can escape the penalty of death only after a jury has heard the matter and recommended mercy. Therefore, the death penalty is not applicable only to those defendants who assert the right to contest their guilt before a jury; and Section 16--52, standing alone, is not unconstitutional under the test applied in Jackson.

Under Section 17--553.4 a defendant may tender a plea of guilty of murder and, if accepted with the approval of the court, such a plea has the same effect as a recommendation to mercy by a jury, with life imprisonment as the automatic punishment. If a defendant pleads not guilty...