State v. Hinton

• Decision Date: 18 June 1947
• Docket Number: 15962.
• Parties: STATE v. HINTON et al.
• Court: South Carolina Supreme Court

43 S.E.2d 360

210 S.C. 480

STATE v. HINTON et al.

No. 15962.

Supreme Court of South Carolina

June 18, 1947

Gaston & Hamilton, of Chester, for appellants.

W. G. Finley, of York, and Robert W. Hemphill, of Chester, for respondent.

FISHBURNE, Justice.

The appellants, Frank Hinton, a sixteen year old negro boy, and his sister, Azalee Simpson, were tried for the killing of Barto Alley, a white man, on the afternoon of December 3 1945, at a combination store and gasoline service station on the outskirts of the city of Chester. Hinton was convicted of murder and sentenced to death, and Azalee Simpson was convicted of murder, with recommendation to mercy, and sentenced to life imprisonment.

The record discloses that the deceased, Barto Alley, his father-in-law, Floyd Ramey, and his brother-in-law, H. O Robbins, left their homes in Fairfield County on the morning of December 3d, to spend the day in Chester. They left Chester in the afternoon, and on their return trip stopped at the service station operated by Woodrow Bagley. It is admitted that they drank a bottle of beer in the morning before leaving Chester, and that they were engaged in drinking beer at the service station shortly before Alley was killed. The accused, Hinton, was warming himself by the stove in the service station when Alley, Ramey and Robbins entered. He started to leave the store, and was passing by Alley, who stood near the front door, when the latter slapped him severely in the face, with the statement that he 'did not know what negroes were coming to,' and that they should have more respect; or words to that effect. Hinton did not return the blow and said nothing in reply, but it may be inferred from the testimony that he became enraged. He and Alley were strangers to each other, having never met before. The great weight of the testimony is that the attack made by Alley on Hinton was entirely without legal provocation, although the inference may be drawn that Hinton cursed or said something to him as he passed.

Immediately after the blow was struck, Mrs. Bagley, who was in the store directed Hinton to go home. He left, but before leaving remarked, 'I will be back.' He lived about 100 yards away. Mrs. Bagley told Alley that he should not have struck the colored boy, and suggested that he leave the store.

Within five minutes, Hinton returned with his shot gun, accompanied by his sister, the appellant Azalee Simpson. As he got within 20 feet of the store, Alley, who had not left the door way went out to meet him, with the statement that he was not afraid of any 'Shine.' In the melee which followed Alley first encountered Azalee Simpson and they exchanged blows with their hands. (It does not appear that either had a weapon.) Azalee was pushed aside or stepped aside, and the evidence tends to show that Alley then attempted to seize the gun from the hands of Hinton. It may be inferred that he had hold of the muzzle when he was shot, the load entering his stomach. There was testimony that Azalee struck him again as he was falling. As a result of the wound Alley died within a few hours at a hospital in Chester.

Several alleged errors are relied upon by counsel for appellants to reverse the judgment of convinction. We will consider only two of them, because the disposition of these in our opinion will be conclusive of the case.

It appears from the record that during a part of the arguments of the solicitor and the other attorneys the trial judge left his seat on the bench, having first requested and obtained the consent of counsel for the state and for the defense to do so. During the five lengthy arguments made in the case the judge for a part of the time was on the bench; at other times he was in the court room and the corridor adjacent thereto, or in his chambers adjoining the court room with the door open where, presumably, he could see and hear what took place in the court room.

While the judge was in his room adjoining the court room, the solicitor in his argument to the jury said in substance: 'I do not ask you to convict the defendants merely because a white man was killed by a negro. At the last court held here this very month I asked a jury to convict a negro man who murdered a negro girl in cold blood, and the jury found him guilty and he was sentenced to the electric chair.'

Immediately after the above statement was made Mr. Gaston, one of the attorneys for the defense, left the court room and informed the trial judge that in his opinion the solicitor was making an improper argument. Thereupon the judge immediately returned to the bench. However, the solicitor, after making the remarks above quoted, had passed on to other matters and no objection or motion was made by defense counsel with reference to this alleged objectionable argument nor was the court stenographer asked to take down the argument for transcription. Objection to the quoted statement was not made specifically until a motion for a new trial was argued and overruled several weeks after the rendition of the verdict.

Later in his argument to the jury, and while the judge was on the bench, the solicitor said in effect: 'If you recommend mercy the sentence would be life imprisonment, but even that does not necessarily mean that he will serve for life there, because * * *.'

At this point, counsel for appellants objected and the solicitor remarked to the court: 'That is the law, as they are eligible for parole after five to ten years.' Upon which the judge said. 'Mr. Solicitor, I would not do that; I don't think that I would go into what might be done. I would not pursue that.'

Appellants contend that they are entitled to a new trial on the ground that the remarks made by the solicitor in his argument to the jury were improper and prejudicial and inflamed the minds of the jurors against the appellants, who are negroes, and deprived them of a fair and impartial trial.

With reference to the statement first above quoted, made by the solicitor in his argument during the absence of the trial...