State v. Middleton

• Decision Date: 26 January 1946
• Docket Number: 15796.
• Citation: 36 S.E.2d 742,207 S.C. 478
• Parties: STATE v. MIDDLETON.
• Court: South Carolina Supreme Court

36 S.E.2d 742

207 S.C. 478

STATE v. MIDDLETON.

No. 15796.

Supreme Court of South Carolina

January 26, 1946

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

Robert McC. Figg, Jr., Sol., of Charleston, for respondent.

Vito Marcantonio and Herman Rosenfield, both of New York, N. Y for amicis curiae in support of the appeal on behalf of International Labor Defense, National Negro Congress Charleston, S. C., Branch of the National Association for Advancement of Colored People, Cosmopolitan Civic League of Charleston, S. C., Citizens Political Action Committee of Charleston, S. C., National Maritime Union, Port of Charleston, S. C., Local 15, Food and Tobacco Workers, and CIO, Charleston, S. C.

A. L GASTON, Acting Associate Justice.

Arthur Middleton, a young Negro, 21 years of age, was tried in the Court of General Sessions for Charleston County on the charge of assault with intent to ravish, and was found guilty by the Jury with recommendation to mercy and was sentenced by Honorable Shepard K. Nash, Special Presiding Judge, to serve a term of 25 years. The indictment also contained a second count charging the defendant with assault and battery of a high and aggravated nature, which is a lesser offense and was an alternative count.

The heinous crime followed the usual pattern of such uncalled for and unprovoked criminal acts, being perpetrated in the sparsely settled rural community, with on one present except the helpless 19 year old woman and the attacker. She was at her home in a small two room cottage situated on James Island on the farm of W. E. Townsend, on the day in question while her husband, Jesse Marvin Price, was absent at work in the Charleston Navy Yard. They had occupied this humble home for about one month; she and her husband coming from other parts of the State to enable him to engage in this Government Work. The house bordered on a field road, upon which was also located the small cottage of Mr. Olin Hartley and his wife, as the nearest neighbors; the Hartley house being midway between the Price cottage and the Townsend house which bordered on the west side of the main road known as Secessionville Road. Across this latter road on the east side, opposite the Townsend house, lies the plantation of Dr. Hope, entered between two brick pillars, upon which Laura Jackson, grandmother of the defendant, lived. The defendant, Middleton, lived farther west on the Grimball road, which appears by the diagram in evidence to cross the Folly Beach road, and also to cross the Secessionville road, these last two being parallel.

On the fateful day, September 7, 1944, at about 2:30 P. M. in the afternoon, Mrs.

Nellie C. Price while indoors ironing clothes saw this Negro man approaching by a path through the field behind her house coming from the direction of the road to Folly Beach. Mrs. Price did not know her assailant and had never seen him until this day when the crime was committed. But she readily identified him later and testified that he was Arthur Middleton. He came to her home twice within a very short time that afternoon on the pretense of looking for Olin Hartley and concealing his real purpose by asking for a drink of water. When she was in the act of getting the water bottle out of the ice box he started entering in at the door but was told to remain on the outside. On his second appearance he said 'open the door I got some mail for Olin.' He then left, going in the direction of Mr. Townsend's yard. Finally he returned the third time to her home through a field of growing corn, which hid the view of his approach and also of the Townsend house, with a demand on his part to her to open the door, saying: 'What you got your house all locked up for? You scared I am going to interfere with you? I am coming in through the screen. I will bust the screen out.' He told her he was going to shoot her and he had something up to the screen but she could not say that it was a gun.

Her testimony in regard to the crime is as follows:

'There was another door on the other side, and I went to that door, and every time I would go over to another door, he would come to that one, and I would go to the other door, and he would come to that one. I finally caught him at the corner of the house, and I got out one door, and I ran toward Olin's screaming, and he ran after me and caught me and jumped on my back--he told me before that that he was going to shoot me, and he had something up to the screen--he jumped on my back and he hit me in the head with something, and I fell down in the corn field, and he fell on top of me, and tore my underclothes.

'Q. Did he do anything else? A. No sir. He had his clothes unbuttoned, and had everything out.

'Q. Did he or not try to have intercourse with you? A. Yes, sir.

'Q. Then what did you do? A. I kicked him in the stomach, and he rolled over in the road, and I got up and ran to Mr. Olin's screaming.'

The evidence in this case clearly shows a criminal intent and assault upon her, an invasion and the violation of the sanctity of her dwelling and that she was chased out of her own home and fled for her safety; and that he made a brutal and evil assault on this young woman, and the bold and dastardly attempt upon her person, which was defeated only by her good fortune and presence of mind and by her frantic efforts when she escaped, screaming for help to her nearest neighbor's home, with her clothing torn and covered with dirt, with sand spurs all over her, her legs scratched up and her hair mussed up; pale and bloodless, almost scared to death, when she got to the Hartley's home.

The appeal to this Court comes from the verdict of the jury and the sentence of the Court upon eleven exceptions all of which have been carefully considered after argument of counsel. When the case was called for trial at the March, 1945, term the defendant's attorneys made a motion to continue the case until the next term on the ground that they did not think they had sufficient time to prepare the case properly for trial. This motion was overruled. It appears by the record that this case was first tried at the September, 1944, term of Court when the defendant was represented by an attorney of his own selection and that the case resulted in a mistrial. At the next term the case was set for trial on December 15, 1944. On December 14th, the defendant's attorney appeared in open Court and stated to the Presiding Judge that he had withdrawn from the case and had returned to him the entire fee which he had received. The Presiding Judge inquired of the defendant in open Court whether he had agreed to the withdrawal from the case of his attorney, and when he answered in the affirmative the Presiding Judge permitted the attorney to withdraw, and continued the case to the March, 1945, term of Court in order to afford him ample time in which to employ other counsel, if he so desired.

At the March, 1945, term, the Solicitor called the case on March 5th, the first day of the term, for the purpose of fixing a day for the trial. The Presiding Judge asked the defendant in open Court whether he had an attorney, and when he answered, in the negative the Presiding Judge appointed Messrs. A. L. Hamer and Joseph Fromberg, attorneys of the Charleston bar, to represent him. The appointment was made on March 6th, and the case was set for trial 8 days later, viz., on March 14, 1945.

On March 13th, the day before that fixed for the trial, the attorneys for the defense made 3 motions as follows:

First, a motion for a continuance to the next term of Court, on the ground that the Court appointed attorneys did not think that they had had sufficient time to prepare the case properly for trial.

Secondly, a motion to quash the indictment on the ground that there were no persons of the Negro race upon the grand jury that returned the true bill at the September, 1944, term of Court, as the Court records showed.

Thirdly, a motion for a continuance on the ground that no persons of the Negro race had been drawn to serve on the petit jury panel for the week of March 12, 1945, in which week the case was set for trial, it being customary to draw a separate petit jury panel for each week of Court.

The Judge who tried the case refused the motion to continue on the ground that counsel did not have sufficient time to prepare for trial. The Judge held that they had been furnished with transcript of the previous trial and had been given all information possible and that there were not sufficient grounds to continue the case. It also appeared that a witness who was absent when the motion was first made, Mrs. E. E. Williams, had arrived the night before from Philadelphia and she was present and testified in behalf of the defendant. Appellant's counsel had at least 8 days in which to prepare for the trial of the case after their appointment by the Court and the entire record established beyond all peradventure that counsel ably, zealously and indefatigably performed their duty. The motion for a continuance for lack of time for preparation was properly refused and the defendant has in no wise suffered or been prejudiced on this account.

The real issue in the case centers around the refusal of the motion to quash the indictment for lack of Negroes on the petit jury which rendered the verdict and also on the grand jury which found the true bill on the indictment.

The Solicitor was very willing to go fully into the facts and called upon all three members of the jury commission to testify and also upon the Deputy Clerk of Court as a witness. Their evidence shows conclusively that no discrimination is exercised and no purposeful plan resorted to in an unlawful effort to exclude Negroes from the juries of Charleston County, nor anywhere else within...