State v. Miller, 16006.

• Decision Date: 07 November 1947
• Docket Number: No. 16006.,16006.
• Citation: 45 S.E.2d 23
• Parties: STATE. v. MILLER.
• Court: South Carolina Supreme Court

45 S.E.2d 23

STATE.

v.MILLER.

No. 16006.

Supreme Court of South Carolina.

Nov. 7, 1947.

Appeal from General Sessions Circuit Court, of Greenville County; G. B. Greene, Judge.

Roosevelt Miller, alias Robert Teasley, was convicted of rape, and he appeals. Affirmed.

Eugene Pollard, L. E. Wooten and J. A. Henry, all of Greenville, for appellant.

Robert T. Ashmore, Sol., of Greenville, for respondent.

BAKER, Chief Justice.

The appellant, a negro of the age of 21 years, was tried, convicted and sentenced to death by electrocution, at the March, 1947, term of the Court of General Sessions for Greenville County, on an indictment charging him with the rape of a 44 year old maiden woman.

At the time of the appellant's arraignment, and at his request, he was assigned counsel by the Court, who accepted the appointment as officers of the Court, and with commendable zeal and ability represented the appellant throughout the trial in the Court below, and are representing him in his appeal to this Court.

The "Questions Involved" in this appeal are stated by appellant's counsel to be:

"1. In a trial under an indictment for rape should a written confession be admitted in evidence when the accused was not carried before a magistrate and dealt with according to law; when he was not informed that he was not compelled to incriminate himself; and when he was not offered benefit of counsel?

"2. In a trial under an indictment for rape, is the corpus delicti proved aliunde the confession when the alleged victim does not testify there was penetration, and circumstantial evidence exists of an injury to the vagina which is as compatible with an assault and battery or other traumatic injury as it is with rapacious assault?

"3. Did the Trial Judge abuse his discretion in not rejecting a juror who in his voir dire examination stated that he had formed an opinion as to the guilt or innocence of the appellant but that it would not take any evidence to remove that opinion?"

We shall undertake, as nearly as is possible, to discuss these questions seriatim, but prior to so doing, it is necessary that we state briefly the pertinent facts as they appear in the record.

The prosecutrix (victim) resided at Fountain Inn, in the County of Greenville, on Fairveiw Street which intersects with Main Street, her place of residence being a little more than a quarter of a mile from said intersection. On the evening of November 20, 1946, at approximately 7:30 o'clock, she left the home of a sister, who resided on Main Street, to walk to her home on Fair-view Street. It was then dark and all street lights had been turned on. Between Main Street and the home of the prosecutrix, there is a branch over which the street, including the paved sidewalk, crosses or passes. When she was nearly to the branch, and where there were no residences, her attention was attracted by hearing some one walking real fast right behind her, and she stepped aside so as to permit such one to pass. The fast walking person did not pass, but grabbed the prosecutrix from behind and threw her down in a hole on the branch side of the sidewalk. When she commenced to holler, he started choking her and told her to hush that hollering, and when she didn't, he choked her until she was unconscious, she still having one mark on her throat at the time of the trial (March, 1947) from the hands and fingers of the person who attacked her. She received scratches all over her face, and the following day her left eye was blood-shot, and her forehead was very sore. She was down on the ground in the bushes and briars at the time she was choked and lost consciousness. While down on the ground on her back she momentarily regained consciousness and heard her attacker twice say to her, "Open up them knees, " and does not remember anything else that occurred, losing consciousness again. When she again regained consciousness she was alone and was climbing out of the branch--coming up the bank. She was confused, and had to stand at a post in a field until she could locate the house in which she lived, but before she got out of the field her brother and young nephew had gone out looking for her, and with the aid of a flash light located her in the field, and took her on home where she was placed in bed. She immediately related to a sister the ordeal to which she had been subjected. She was bloody and her privates had been torn, and she was suffering pain from the penetration of her private organs. The step-ins which she was wearing were torn and bloody, and the coat she was wearing also had blood on it about the middle and on the left shoulder. In fact, every garment she was wearing at the time of the attack made upon her had some blood on it-- some more, some less.

The prosecutrix was unable to see her attacker well enough to identify him or even to say definitely if he was white or colored. All she could say was that "he was not go very big, " and that "he had on some kind of short coat or jacket." His voice was not familiar to her.

Immediately after the prosecutrix was led to her home, Dr. Herbert Vaughan, a practicing physician at Fountain Inn, was summoned and arrived within a few minutes. He testified that he found the prosecutrix suffering with shock; that she was highly nervous and was bleeding a good deal from her vagina, and lacerated; that there was evidence of having been choked or something, a few scratches on her face and a lick or two on the head; that there were broken places on her throat and her throat was bloody; that inside of her thighs "were blue and several finger marks on them asif they had been squeezed or mashed, and kinda torn a little"; that upon an examination of her private organs outwardly and inwardly he "found that she had been lacerated and she was bleeding from up in the vagina, a blood vessel was still bleeding"; that force had to be used to have torn her as she was, and that there was definitely a penetration into her private organs because there were abrasions farther up in her privates; that the lower portion of the hymen was ruptured and that she had lost considerable blood; and' that his professional opinion was that she was a virgin prior to this attack.

Following the emergency treatment at her home by Dr. Vaughan, the prosecutrix was carried to a hospital in Greenville where she remained for two weeks. Upon her arrival there, she was examined and treated by Dr. R. L. Cashwell, whose testimony is corroborative in every vital particular of the testimony of Dr. Vaughan, and in addition he testified that she complained of soreness in her chest, and that she had some bruises on her lower chest. The prosecutrix was still bleeding from the vagina at the time Dr. Cashwell examined her.

The foregoing facts relate in the main to Question 2, but we think it proper that such brief history of that portion of the case be first given.

The record discloses only by inference the information which prompted the officers of the law to arrest the appellant approximately two months after the attack was made on the prosecutrix. When the appellant was arrested, he was not informed that he was charged with raping the prosecutrix. He was first carried to the Police Headquarters in Fountain Inn on the night he was arrested, and from there to the common jail for Greenville County, where he was incarcerated until the next day, about 3 o'clock P. M., when the Sheriff of Greenville County and two of his deputies returned with him to Fountain Inn, and it was while being questioned at Police Headquarters there that he made and signed the confession which was admitted in evidence over the objection of his counsel on the ground that "the confession under the cir cumstances was illegally obtained and therefore not admissible against appellant."

It does not appear from the record that at the time of the confession by the appellant, he had been formally charged with the crime of rape, that is, he had not been carried before any committing judge or magistrate and no order or warrant for his arrest had been issued. Appellant therefore undertakes to invoke the aid of Sections 907, 1011 and 1012 of the Code of 1942.

A casual reading of Section 907 discloses that it merely purported or intended to confer the right and power upon any citizen or person to make an arrest of a felon under certain circumstances, but only for the purpose of taking the alleged felon before a Judge or Magistrate "to be dealt with according to law"; and that such section is not apposite to the facts of this case. Nor is Section 1011 apposite. The appellant was not on trial in the sense intended by the statute at the time he is alleged to have made a confession.

The pertinent portions of Section 1012 of the Code, and of Article 1, Section 17 of the Constitution of 1895, read in their order follows: "No person shall be required to answer any question tending to criminate himself * * *."; and "Nor shall (any person) be compelled in any criminal case to be a witness against himself."

"Confession, " in legal sense, is restricted to acknowledgment of guilt, and does not apply to mere statement of fact from which guilt may be inferred. State v. Pittman, 137 S.C. 75, 134 S.E. 514.

In State v. Baker, 58 S.C. 111, 36 S.E. 501, 502, it is stated: "In disposing of the question raised as to the admission of a confession of guilt by the defendant when reduced to writing, we may remark that the written confession in this case was made without solicitation, importunity, promise, or threat being used to induce the same. Confessions are admitted if made voluntarily. The jury is not required by law to believe a confession. The jury may accept a part and reject the balance. All the safeguards thrown around confessions by the law are to insure truth. Once is it as-certained that the confession is true, no great attention is paid to technical rules. For instance, it was at one time held that a person charged with crime must be admonished that, if he made any...