State v. Hinson, 16961

• Decision Date: 09 February 1955
• Docket Number: No. 16961,16961
• Citation: 226 S.C. 495,85 S.E.2d 735
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Liston HINSON and W. L. Hardee, Appellants.

Page 735

85 S.E.2d 735

226 S.C. 495

The STATE, Respondent, v. Liston HINSON and W. L. Hardee, Appellants.

No. 16961.

Supreme Court of South Carolina.

Feb. 9, 1955.

H. T. Abbott, Jr., Conway, L. B. Dawes, John S. Sikes, Loris, for appellants.

J. Reuben Long, Circuit Sol., Conway, J. Ralph Gasque, Marion, for respondent

OXNER, Justice.

Appellants, both White, were found guilty of rape with recommendation to mercy and each sentenced to imprisonment for a term of forty years. The questions presented by their appeal are (1) whether the trial Judge erred in refusing their motions for a mistrial on the ground of improper argument by counsel assisting the State, and (2) whether certain remarks made by him in passing on thise motions constituted prejudicial error.

Since no question is raised as to the sufficiency of the evidence to support the verdict, the record does not contain the testimony offered by the prosecution. It seems to be conceded, however, that this testimony was to the effect that while the prosecuting witness, a high school girl, and her boy friend were parked at night in a secluded spot on the Pee Dee River in Marion County, appellants suddenly came upon the scene and after robbing the man one of them raped the girl while the other held a rifle on her companion.

Appellants admitted the robbery, but denied the charge of rape. According to their testimony, they knew boys and girls frequented this place and on the night in question went there for the purpose of committing robbery. One of them said, 'We thought if we robbed people in a place like that, they wouldn't say nothing about it.' The other stated that this was a good place to rob because if they were recognized, their victims 'would be afraid to tell it'. Appellant Hinson admitted that on several prior occasions they had committed robbery at this place.

Appellants testified that when they came upon this boy and girl parked in a car, one of them held a loaded rifle, while the other searched the boy and took $25 from him. They emphatically denied making any attempt to rape the girl.

The opening argument was made by Mr. Gasque, counsel employed to assist the State. During the course of this argument, the record shows that the following occurred:

'Mr. Abbott: I move for a mistrial at this time, on the ground that counsel for the State has repeatedly referred to the defendants as self-confessed robbers, and then the second time as robbers. It is certainly very prejudicial for counsel to make such argument, and I move on those grounds for a mistrial.

'The Court: As I understood counsel's argument, he was arguing that, under the evidence of this case, in the testimony of the defendants, that they admitted they were guilty of robbery and for that reason they are not worthy of belief as witnesses in this case. I think it is legitimate argument, and I overrule the argument (motion).

'(Mr. Gasque continues his argument to the jury).

'Mr. Abbott: I respectfully move for a mistrial on the ground that counsel, in argument to the jury, counsel has called the defendants criminals; it is not part of the evidence. These men are at this bar of justice, and until they are convicted, they are not criminals, I respectfully submit.

'The Court: As I have ruled before, I think it is a legitimate inference from defendant's testimony that they admit they were guilty of robbery at this particular time, and I think the State has a right to argue that, and I would be unfair to deny the State the right to argue that the evidence shows they are criminals, and to that effect their credibility in that behalf. I overrule your motion.'

We shall first determine whether the Court erred in not ordering a mistrial. It is contended that it was highly improper for counsel to refer to appellants as 'criminals' and 'robbers'. Appellants having admitted the robbery, it was permissible for counsel to argue this fact as bearing on the credibility of their testimony. Having elected to testify, they occupied the dual role of defendants and witnesses. In the latter capacity, their reputation for truth and veracity was placed in issue, thereby making it permissible to show any of their past transactions tending to affect their credibility. State v. Gibert, 196 S.C. 306, 13 S.E.2d 451; State v. Van Williams, 212 S.C. 110, 46 S.E.2d 665; State v. Corn, 215 S.C. 166, 54 S.E.2d 559.

It is said, however that appellants had not been convicted of the offense of robbery. There would be more merit in this contention if they had denied the charge. But what stronger evidence could there be of their guilt of this offense than their admission under oath that they committed it? Since appellants were in fact 'self-confessed robbers', there could be no prejudicial error in referring to them as...