State v. Judge

• Citation: 38 S.E.2d 715,208 S.C. 497
• Decision Date: 07 June 1946
• Docket Number: 15847.
• Parties: STATE v. JUDGE.
• Court: United States State Supreme Court of South Carolina

38 S.E.2d 715

208 S.C. 497

STATE v. JUDGE.

No. 15847.

Supreme Court of South Carolina

June 7, 1946

[Copyrighted Material Omitted]

A. L. Hamer, of Charleston, for appellant.

R McC. Figg, Jr., Solicitor, of Charleston, for respondent.

BAKER, Chief Justice.

At the June, 1945, term of the Court of General Sessions for Charleston County, appellant was indicted for the murder of Alric A. Gore, who died from a pistolshot wound received on the 16th day of April, prior thereto in said Charleston County.

Upon his arraignment, the appellant pleaded not guilty and was tried before Honorable William H. Grimball, Circuit Judge and a jury. The trial resulted in a verdict of guilty of murder, without a recommendation to mercy, and appellant was duly sentenced to suffer death by electrocution.

From such conviction and sentence he has appealed to this Court on fourteen exceptions, which the appellant alleges raise four issues, as follows:

'1. Did the presiding judge err in the overruling appellant's objection, when the court allowed the alleged confession to be introduced in evidence.

'2. Did the presiding judge err in refusing to grant the motion of the appellant for a directed verdict of not guilty.

'3. Did the presiding judge err in not instructing the jury that the sole question for their consideration was whether the appellant was guilty of Manslaughter or not guilty.

'4. Did the presiding judge err in refusing the motion for a new trial, when the evidence showed that the shooting took place in self-defense, also there was no malice whatever shown, and if the appellant was guilty of anything it could not have been more than Manslaughter, as the shooting took place in sudden heat and passion, and not with malice.'

The State has more succinctly stated the questions involved to be:

'1. Was the evidence sufficient to support appellant's conviction of murder?

'2. Did the presiding judge err in ruling admissible in evidence a written statement signed by appellant in which he admitted firing the fatal shot?'

The facts surrounding the death of the said Alric A. Gore, as disclosed by the record, fully warranted the verdict of the jury. The deceased was a bus driver in the employ of South Carolina Power Company, and there is no issue in the case as to the cause of his death, to wit, that he died from a pistol-shot wound. On the 16th day of April, 1945, at approximately 9 o'clock p. m., a bus of said company operated by the deceased, made a stop at Five Milo Station and picked up some colored passengers, one of whom was the appellant herein; just before or at about the time the bus started up, some one outside called to some one inside the bus, and whoever it was that was addressed on the inside of the bus said, 'Catch the next bus and come on'; the bell rang for the bus to stop at the next stop, and as the bus stopped some passengers got off at the rear door, while a colored man came to the front and said to the bus driver, 'We are not going any further, I want my money back'; the bus driver replied, 'I can't give you a dern cent back'; where upon the colored man pulled out a revolver and shot the bus driver (The appellant's version is that the driver said, 'Hell, no,' and that he reached down and came up with a pistol and that is when he shot him; that each fired at the precise moment, and that the bullet from the driver's pistol hit him in the top of his head); immediately following the shooting, this colored man jumped from the bus and fled, and the bus driver died within a few minutes.

The foregoing is taken from the testimony of two eyewitnesses, passengers on the bus sitting in such a position that they had an unobstructed view of the driver and his assailant. Neither of these eyewitnesses undertook to positively identify the appellant as the colored man who did the shooting. However, upon appellant's arrest on April 18, he was found to have on his person some unfired bullets of the same calibre as was the bullet fired into the deceased and an empty cartridge, and when asked by the officer making the arrest if that was the bullet he killed the bus driver with, he replied, 'Yes.'

In the light of a written confession which we will discuss later herein, the eyewitnesses were examined as to whether the driver of the bus, the deceased, had a weapon of any description, and more particularly a pistol, and whether he made any move to procure such a weapon, and it was their testimony that the driver did not have a pistol in his possession, so far as they could see, and that they could have seen it if he had one, did not reach down at all, did not shoot at the appellant, and was shot while he was sitting straight up in the driver's seat.

The county police officers reached the scene of the shooting soon thereafter, and from a description of the negro who fired the fatal shot, more particularly as to the clothes he was wearing, including his hat (and no doubt from other information), on April 18, the day the appellant was arrested, the officers went to the home of the appellant and found a .38 pistol which was hanging in the appellant's coat, and also clothing consisting of a pair of trousers, a hat, a sport shirt, and a coat tallying with the description of the clothes worn by the assailant of the deceased. The pistol had six bullets in it, all unfired, and some additional bullets were found in the home. About twenty minutes after the search of the house, the appellant was arrested while driving a truck, and some more unfired bullets were found in his possession, and also an empty cartridge. It was at that time that the arresting officer asked the appellant if that was the bullet he killed the driver of the bus with, and the appellant replied, 'Yes.' Upon being arrested, the appellant was carried to the police station in the City of Charleston, and upon being questioned about the shooting, he made a statement which was reduced to writing, was read over by him, signed by him, and witnessed by the officers.

Before this signed statement was offered in evidence, testimony was submitted that it was made freely and voluntarily and that there were no threats, force or duress used in procuring the same, nor were there any inducements of any nature offered the appellant, and that the statement was written 'like he wanted to say it.' This written statement was not offered in evidence until after the corpus delicti had been proven.

When this written statement was offered in evidence, counsel for appellant objected to its introduction on the ground that it was 'not sworn to,' and that he didn't know the circumstances under which it was signed.

It is not necessary that a written confession or statement be sworn to by the party making same, if it be properly proven that the statement was made by such party freely and voluntarily. The record in this case is devoid of any testimony that the written statement was procured by any means which would constitute a denial of due process of law in violation of either the State Constitution or Federal Constitution. Indeed, when the appellant testified in his own behalf, he did not claim that he made the statement under duress or other unlawful or improper means, or that he was improperly...