State v. Moorer, No. 18016

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtTAYLOR
Citation129 S.E.2d 330,241 S.C. 487
Docket NumberNo. 18016
Decision Date21 January 1963
PartiesThe STATE, Respondent, v. Louis MOORER, Appellant.

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.

Page 332

[241 S.C. 489] W. Newton Pough, Orangeburg, Moore & Brown, Charleston, for appellant.

[241 S.C. 490] Solicitor Julian S. Wolfe, Orangeburg, Sidney B. Jones, Jr., Summerville, for respondent.

[241 S.C. 491] 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 [241 S.C. 492] 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

Page 333

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 [241 S.C. 493] 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, [241 S.C. 494] 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...

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23 practice notes
  • State v. Salisbury, No. 2792.
    • United States
    • Court of Appeals of South Carolina
    • February 17, 1998
    ...law governing testimony of that class, it is not incumbent upon the trial judge to charge the law pertaining thereto." State v. Moorer, 241 S.C. 487, 500, 129 S.E.2d 330, 337 (1963), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). See also State v. Langs......
  • State v. Torrence, No. 23403
    • United States
    • United States State Supreme Court of South Carolina
    • May 1, 1989
    ...cert. denied, 389 U.S. 1055, 88 S.Ct. 806, 19 L.Ed.2d 853 (1968); State v. Black, 243 S.C. 42, 132 S.E.2d 5 (1963); State v. Moorer, 241 S.C. 487, 129 S.E.2d 330 (1963); State v. Morris, 243 S.C. 225, 133 S.E.2d 744 (1963); State v. Sharpe, 239 S.C. 258, 122 S.E.2d 622 (1962); State v. Wort......
  • People v. Sims, Nos. 84-2337
    • United States
    • United States Appellate Court of Illinois
    • December 7, 1987
    ...the ground that the use of the term "rape" was sufficient in State v. Thomas (1966), 248 S.C. 573, 151 S.E.2d 855; State v. Moorer (1963), 241 S.C. 487, 129 S.E.2d 330, cert. denied, 379 U.S. 860, 85 S.Ct. 119, 13 L.Ed.2d 63 (and cases therein cited); and Haney v. State (1978), 144 Ga.App. ......
  • Fields v. REGIONAL MEDICAL CTR. ORANGEBURG, No. 25939.
    • United States
    • United States State Supreme Court of South Carolina
    • February 14, 2005
    ...as an expert is sufficiently established by the fact that he has been duly licensed to practice medicine or surgery. State v. Moorer, 241 S.C. 487, 129 S.E.2d 330 (1963), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); Hill v. Carolina Power Light Co., 2......
  • Request a trial to view additional results
23 cases
  • State v. Salisbury, No. 2792.
    • United States
    • Court of Appeals of South Carolina
    • February 17, 1998
    ...law governing testimony of that class, it is not incumbent upon the trial judge to charge the law pertaining thereto." State v. Moorer, 241 S.C. 487, 500, 129 S.E.2d 330, 337 (1963), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). See also State v. Langs......
  • State v. Torrence, No. 23403
    • United States
    • United States State Supreme Court of South Carolina
    • May 1, 1989
    ...cert. denied, 389 U.S. 1055, 88 S.Ct. 806, 19 L.Ed.2d 853 (1968); State v. Black, 243 S.C. 42, 132 S.E.2d 5 (1963); State v. Moorer, 241 S.C. 487, 129 S.E.2d 330 (1963); State v. Morris, 243 S.C. 225, 133 S.E.2d 744 (1963); State v. Sharpe, 239 S.C. 258, 122 S.E.2d 622 (1962); State v. Wort......
  • People v. Sims, Nos. 84-2337
    • United States
    • United States Appellate Court of Illinois
    • December 7, 1987
    ...the ground that the use of the term "rape" was sufficient in State v. Thomas (1966), 248 S.C. 573, 151 S.E.2d 855; State v. Moorer (1963), 241 S.C. 487, 129 S.E.2d 330, cert. denied, 379 U.S. 860, 85 S.Ct. 119, 13 L.Ed.2d 63 (and cases therein cited); and Haney v. State (1978), 144 Ga.App. ......
  • Fields v. REGIONAL MEDICAL CTR. ORANGEBURG, No. 25939.
    • United States
    • United States State Supreme Court of South Carolina
    • February 14, 2005
    ...as an expert is sufficiently established by the fact that he has been duly licensed to practice medicine or surgery. State v. Moorer, 241 S.C. 487, 129 S.E.2d 330 (1963), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); Hill v. Carolina Power Light Co., 2......
  • Request a trial to view additional results

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