State v. Moorer

• Decision Date: 21 January 1963
• Docket Number: No. 18016,18016
• Citation: 129 S.E.2d 330,241 S.C. 487
• Parties: The STATE, Respondent, v. Louis MOORER, Appellant.
• Court: South Carolina Supreme Court

Page 330

129 S.E.2d 330

241 S.C. 487

The STATE, Respondent, v. Louis MOORER, Appellant.

No. 18016.

Supreme Court of South Carolina.

Jan. 21, 1963.

W. Newton Pough, Orangeburg, Moore & Brown, Charleston, for appellant.

Solicitor Julian S. Wolfe, Orangeburg, Sidney B. Jones, Jr., Summerville, for respondent.

TAYLOR, Chief Justice.

The Appellant, Louis Moorer, a 22 year old Negro man, was tried and convicted in the Court of General Sessions for Dorchester County, of the charge of rape and was sentenced on April 4, 1962, to death as provided by the laws of the State of South Carolina and this appeal follows.

At the opening of the October, 1962, Term of this Court, Attorney W. Newton Pough, an attorney of good repute who had been retained by relatives of Appellant and had represented him at the time of trial, moved, after notice, that he be excused by the Court from further service in the case because certain relatives of Appellant had stated to him that it was their desire that other counsel represent Appellant upon appeal. Investigation revealed that counsel had already filed his brief and done all things necessary in the appeal except make oral argument. Other counsel, Moore & Brown, attorneys of Charleston, stated to the Court that certain relatives of Appellant desired that they participate in the appeal and petitioned that they be entered as attorneys of record for the purpose of this appeal.

Because of the serious nature of the case, the Court felt that it was to the best interest of Appellant that counsel who had represented him upon trial should remain in the case and refused his motion to be relieved of further duties with respect thereto.

The petition of attorneys Brown & Moore that they be permitted to participate in this appeal was granted and oral argument made. They were granted additional time in which to file their brief, which was duly filed with the Clerk of this Court.

The prosecutrix is the wife of a prominent practicing physician residing in the Town of St. George, S. C. On December 14, 1961, Appellant, who had been known of the prosecutrix for approximately 6 or 7 years, was working in the yard at the prosecutrix' home. He had come to work at approximately 8 A.M. and worked until noon when he left to go to lunch with the announced intention of returning and finishing the work. Appellant returned to prosecutrix' home at approximately 1:45 P.M. At that time the prosecutrix' sister-in-law was concluding a short visit. The Appellant was working in the front yard as the sister-in-law left the house by the back door and departed in her automobile.

After her sister-in-law's departure, the prosecutrix, who was alone in the house at this time, walked to the front of the house to see how Appellant was progressing with his work. She noticed that he would need a dustpan and directed Appellant to wait on the front porch while she went to get the dustpan out of the broom closet. As she returned through the dining room, Appellant ran toward her and grabbed her with both arms. The prosecutrix said, 'Louis, here is the dust pan'; and he replied, 'Dust pan? Dust pan? We don't need no dust pan for what I am going to do to you.' After that the prosecutrix testified that she and her attacker started struggling and fighting. During this time she pleaded with him to desist and stated that if he would leave immediately she would not tell. He then threw her to the floor and started beating her head up and down on the floor, stating, 'Hell, tell, tell, tell. Who is going to tell? I ain't going to leave you to tell.' Appellant commenced twisting the prosecutrix' arm, and they continued to struggle. As they neared the front door, the prosecutrix screamed and Appellant started choking her. After further struggle, Appellant started kissing the prosecutrix and she slapped him. Appellant then struck the prosecutrix over the temple and started slapping her with her own hands, saying, 'Don't you never do that again to me, * * *, when I kiss you. Don't you never. I came to get it and I will stay until I get it.' After prolonged struggle, the prosecutrix testified that she could not fight any more and that Appellant did ravish and rape her. She further testified that Appellant relaxed for a second, and she jumped up and started through the front door. At this time her children were returning from school; it was approximately 2:15 P.M. Appellant then left, and the prosecutrix had her sister-in-law summoned. The prosecutrix later was examined by a physician, who testified that upon aspiration of the vagina, live male sperm was found. He also testified as to her injuries and that she was in a state of shock when first seen.

The first question for determination is whether the Court erred in refusing Appellant's motion for ccontinuance and change of venue. Appellant recalled his motion for continuance which was based upon the requirement for a three days' sight of indictment as required by Section 17-408, Code of Laws of South Carolina, 1952, and did not pursue this point in his brief or argument. The motion for change of venue is based upon the fact that the prosecuting witness and her husband, who is a practicing physician, are very prominent in the community and that a presumption is raised that members of the jury panel or their families were or have been members of the doctor's clientele.

A motion for change of venue is addressed to the judicial discretion of the trial Judge and this Court will not reverse the trial Judge's disposition of such motion in the absence of a clear and conclusive showing of abuse of discretion. State v. Britt, 235 S.C. 395, 111 S.E.2d 669; State v. Livingston, 233 S.C. 400, 105 S.E.2d 73; State v. Mouzon, 231 S.C. 655, 99 S.E.2d 672; State v. Davis, 138 S.C. 532, 137 S.E. 139; State v. Goodwin, 127 S.C. 107, 120 S.E. 496; State v. Jackson, 110 S.C. 273, 96 S.E. 416.

'Where an application is made, by one accused of crime for a change of venue on the ground that an impartial jury cannot be obtained, the law devolves on the trial judge the duty and responsibility of making an examination and informing himself of the truth of the averments in the application; and where, after hearing evidence, the trial court is satisfied that a fair and impartial jury may be had in the county where the crime is alleged to have been committed, this court will not reverse his judgment refusing to shange the venue, unless it is made to appear that there has been an abuse of discretion. * * *' State v. Thomas, 198 S.C. 519, 18 S.E.2d 369.

The Appellant contends that the trial Judge erred by refusing the motion before ascertaining whether or not grounds existed which would warrant the granting of the motion. However, the motion did not state sufficient grounds for a change of venue and Appellant's counsel did not attempt to show the Court that Appellant was unable to obtain a fair and impartial trial. Even if it were true that all of the members of the jury panel were members of the doctor's clientele there is no legal presumption that this fact, standing alone, would prevent the accused from receiving a fair and impartial trial. Under these circumstances it was proper for the trial Judge to refuse the motion. The trial Judge, however, after denying the motion, placed the prospective jurors on their voir dire in order to further protect the rights of Appellant and to insure that a fair and impartial jury could be impanelled. It is interesting to note that of the eighteen prospective jurors called, only the second one stated that he had been a patient of the prosecutrix' husband, and this juror was acceptable to both the State and Appellant.

The Appellant questions the admissibility of certain portions of the physician's testimony on the grounds that such testimony was incompetent in that the physician was never qualified in Court to testify as an expert witness. It is well established in this State that it is within the trial Judge's discretion to determine whether a witness has qualified as an expert, O'Kelley v. Mutual Life Ins. Co. of New York, 197 S.C. 109, 14 S.E.2d 582; Huggins v. Broom et al., 189 S.C. 15, 199 S.E. 903; Collins v. Atlantic Coast Line R. Co., 183 S.C. 284, 190 S.E. 817; and unless it is shown that there has been an abuse of discretion, this Court will not disturb the trial Judge's ruling. By permitting the doctor to testify, concerning the results of certain medical tests and examinations, the trial Judge by inference ruled that he was qualified as an expert witness.

'When a witness is offered as an expert upon a matter in issue, his competency, with respect to the special skill or experience, is to be determined by the Court as a question preliminary to the admission of his testimony. There should be a finding by the Court, in the absence of an admission or a waiver by the adverse party, that the witness is qualified; and since there is no presumption that a witness is competent to give an opinion, it is incumbent upon the party offering the witness to show that the latter possesses the necessary learning, knowledge, skill, or practical experience to enable him to give opinion testimony. * * *' 20 Am.Jur. 659, Evidence, Section 786.

'* * * for the testimony of an expert witness to be received, his qualification as such must be first proved. * * * If that prequisite is not met the opinion of the expert must be excluded.' Knudsen v. Duffee-Freeman, Inc., 95 Ga.App. 872, 99 S.E.2d 370. This Court has held that a physician may qualify as an expert by testifying as to his education and experience, O'Kelley v. Mutual Life Ins. Co. of New York, 197 S.C. 109, 14 S.E.2d 582, or by a showing that he has been duly licensed to practice medicine or surgery, Hill v. Carolina Power & Light Co., 204 S.C. 83, 28 S.E.2d 545. Although no objection was made during trial to the physician's testimony and the damissibility of this testimony was first questioned on appeal, this Court, in a...