State v. Logue

• Decision Date: 19 January 1944
• Docket Number: 15613.
• Citation: 28 S.E.2d 788,204 S.C. 171
• Parties: STATE v. LOGUE.
• Court: South Carolina Supreme Court

28 S.E.2d 788

204 S.C. 171

STATE v. LOGUE.

No. 15613.

Supreme Court of South Carolina

January 19, 1944

Blackwell Sullivan & Wilson, of Laurens, and B. E. Nicholson, of Edgefield, for appellant.

Jeff D. Griffith, Sol., of Saluda, and Samuel R. Watt, Sol., of Spartanburg, for respondent.

WM. H GRIMBALL, Acting Associate Justice.

Appellant was tried before his honor, Judge Bellinger, and a jury at the July 1943 term of the Court of General Sessions for Edgefield County, on an indictment charging him with the felonious homicide of one Davis W. Timmerman. The jury found him guilty of murder, and the presiding judge sentenced him to death. From this sentence he now appeals to this court.

An account of the killing of Timmerman appears in the opinion of this court in the case of State v. Bagwell et al., 201 S.C. 387, 23 S.E.2d 244. It need not be here repeated.

From appellant's brief in the present case we take the following statement:

"Davis W. Timmerman was shot to death by an unknown party in his store in the Meeting Street Section of Edgefield County on the afternoon of September 17th., 1941. Thereafter Clarence Bagwell, of Spartanburg, S. C., was arrested for the murder of Davis W. Timmerman, and shortly after his arrest made a confession of his participation therein. In his confession Clarence Bagwell implicated Joe Frank Logue, the appellant and on November 9th., 1941, Joe Frank Logue was arrested.

After his arrest appellant Joe Frank Logue was carried to the Newberry Jail and was there questioned by E. Gary Davis, B B. Brockman and Sam M. Henry as to his alleged participation in the murder of Davis W. Timmerman. Subsequently on November 15th, 1941, Joe Frank Logue, the appellant, while in the South Carolina penitentiary made a written detailed confession in which he admitted his participation in the murder of Davis W. Timmerman.

Clarence Bagwell, George Logue and Sue Logue subsequently were placed on trial in the Court of General Sessions for Lexington County and all three were found guilty by the jury and were subsequently executed for the murder of Davis W. Timmerman. Joe Frank Logue was produced and used as a witness for the State in the Court of General Sessions for Lexington County in the trial of Clarence Bagwell, George Logue and Sue Logue.

At a term of the Court of General Sessions in and for Edgefield County, holden at Edgefield, on the first Monday in March, 1943, an indictment was returned by the Grand Jury against the appellant Joe Frank Logue charging that the said Joe Frank Logue did murder and kill the said Davis W. Timmerman on September 17th., 1941. On July 12th., 1943, the appellant Joe Frank Logue was placed on his trial at the Court of General Sessions for Edgefield County upon said indictment before Honorable G. Duncan Bellinger, presiding Judge, and a jury.

The presiding Judge did not require the jurors empanelled to serve at that term of Court to produce their registration certificates, nor was any inquiry made of them by the Court as to their eligibility, nor did counsel representing the defendant request that it be ascertained of the jurors whether or not they held registration certificates. The jurors were put on their voir dire and at the conclusion of the examination of each juror by the Court, the Court asked of counsel, both for the State and for the defense, whether or not the said counsel desired to examine the juror further. In the examination of the respective jurors by counsel, both for the State and the defense, there was no question asked them concerning whether or not they were registered electors and held certificates to that effect. In the examination of each juror on his voir dire, as had been requested by the counsel for the defendant, each was examined as to his relationship to W. D. Allen, the former sheriff of Edgefield County, Deputy Sheriff W. L. Clark, Fred Dorn, George R. Logue and Sue Logue. The reason for this examination of the juror as to his relationship being that Sheriff W. D. Allen and his deputy, W. L. Clark, were killed at the home of George R. Logue and Sue Logue while attempting to arrest them on a warrant charging them with accessory before the fact to murder Davis W. Timmerman. Fred Dorn, a share-cropper of George R. Logue, was also killed at that time in a gun battle growing out of the attempt of the sheriff and his deputy to arrest Sue Logue and George R. Logue.

Counsel for Joe Frank Logue did not seek a verdict of not guilty but sought a verdict of guilty with recommendation to mercy and this fact was stated frankly to the Court and to the jury during the course of the trial and in arguments. Joe Frank Logue maintained throughout the trial that he participated in the crime solely because of fear for the safety of his wife and mother.

The jury found the appellant, Joe Frank Logue, guilty of murder and the appellant was sentenced by the presiding Judge to suffer death by electrocution on the 25th., day of August, 1943.

Immediately thereafter and before the adjournment of the Court sine die, the defendant-appellant, Joe Frank Logue, moved for a new trial, which was refused by the presiding Judge in an order made and filed on July 23, 1943."

Appellant now charges error in a number of particulars, and we shall consider these one at a time.

It is first charged that there was error in that the presiding judge failed to comply with Section 608 of the Code in that he did not ascertain the qualifications of the jurors by having them present to the Clerk of Court their registration certificates or other satisfactory evidence that they were qualified electors.

There are two reasons for which this exception must be dismissed.

There is no showing made in the record that appellant was in any manner prejudiced by the fact that the jurors were not required to present to the Clerk of Court their registration certificates or other satisfactory evidence that they were qualified electors. It may be presumed from the failure to make any such showing that those called to serve as jurors at this term of Court were qualified electors;--and that the twelve men who sat upon the jury which convicted appellant were qualified electors.

Nor does the record show that any timely suggestion was made to the presiding judge that he should have those upon the venire present to the Clerk of Court their registration certificates or other satisfactory evidence that they were qualified electors. Had such a request been made, Judge Bellinger, able and experienced trial judge that he is, would undoubtedly have required this to have been done.

"All objections to jurors called to try prosecutions, or actions or issues, or questions arising out of actions or special proceedings in the various courts of this State, if not made before the juror is empaneled for or charged with the trial of such prosecution or action, or issue, or question arising out of actions or special proceedings, shall be deemed waived; and if made thereafter shall be of none effect." Code, Section 639; State v. Gregory, 171 S.C. 535, 172 S.E. 692.

In the selection of the jury the appellant used all of his ten peremptory challenges. One of these he used to excuse one J. B. Berry. He did not challenge juror A. B. Lott, and the latter was a member of the trial jury. Appellant now insists that the trial judge should have excused both of these men on the ground of relationship.

It appeared that upon voir dire questioning Lott testified that Timmerman's sister had married Lott's first cousin and that sheriff W. D. Allen's sister had married Lott's uncle. And it also...