State v. Outen

• Decision Date: 11 January 1961
• Docket Number: No. 17734,17734
• Citation: 237 S.C. 514,118 S.E.2d 175
• Court: South Carolina Supreme Court
• Parties: STATE, Respondent, v. Walter James OUTEN, Appellant.

Page 175

118 S.E.2d 175

237 S.C. 514

STATE, Respondent, v. Walter James OUTEN, Appellant.

No. 17734.

Supreme Court of South Carolina.

Jan. 11, 1961.

Sidney D. Duncan, Columbia, for appellant.

Solicitor T. P. Taylor, Columbia, for respondent.

MOSS, Justice.

Walter James Outen, the appellant herein, a Negro man twenty-nine years of age, was convicted of rape and sentenced to death. Sections 16-71, 16-72, of the 1952 Code of Laws of South Carolina.

The evidence for the State was that the prosecutrix, a white married woman, was a waitress in a restaurant in the City of Columbia and resided several miles north of the City near the Town of Dentsville. On November 11, 1959, after the prosecutrix had finished her days work as a waitress, she caught a bus at 10:15 p. m. to go home. She got off the bus some distance from her home in a rather isolated area. She waited until the bus went on by and then crossed the road to walk in the direction of her home. The appellant, emerging from some bushes at the side of the road, grabbed the prosecutrix from behind as she was attempting to run. She testified that he jumped on her back and threw her to the ground, having his hand over her mouth, and exhibited to her a knife. She says that the appellant asked her to go over in the bushes with him and that in response to this she told him to let her get up and she would. When he released her she attempted to escape and it was then that the appellant grabbed her and dragged her into a clump of bushes. She testified that the appellant held the knife on her and told her he was going to stick it in her if she attempted to escape again. After the appellant had dragged the prosecutrix into the bushes, he made known to her his intention to have sex relations with her, and 'I told him that he couldn't mean that, and he said, 'Why? Because you are a white woman and I am a colored man,' and I told him that was one of the reasons and that 'I just don't do things like that,' and he told me that I was going to have to.' She further testified that 'he wanted me to kiss him like he was a white man' and he promised her 'If I would kiss him, he would let me go, so I had to.' She further testified that the appellant refused to let her go and she had to give in because he had the knife at her throat. She also testified that the appellant had sexual intercourse with her against her will. The prosecutrix testified that she was with the appellant about one hour and fifteen minutes and was allowed to leave upon the promise that she would not tell of the occurrence. When she arrived home, the officers were summoned and a complete description of the appellant was given. She described the appellant as wearing khaki pants, navy blue shirt, a jungle hat and that he was bare footed. The officers, within a short time after the report was made, tracked foot prints from the scene of the crime to the home of the appellant, where he was arrested and taken to headquarters. The prosecutrix there identified the appellant in two different police line-ups of colored men.

After the appellant had been identified by the prosecutrix, he was then questioned in the presence of the Sheriff and two Deputy Sheriffs of Richland County, and a Negro policeman of the City of Columbia Police Department. The statement of the appellant was reduced to writing, a portion of which is in question and answer form. In the confession the appellant gave a detailed account of his raping the prosecutrix. In the confession he admitted that he did not have on any shoes, having left them at home to keep his wife from knowing that he was going out. He admitted also that he was wearing a tan tropical hard canvas cap, khaki pants and a blue shirt. All of the officers testified that the confession of the appellant was freely and voluntarily given.

It appears from the record that on November 12, 1959, that the family physician of the prosecutrix examined her. He testified that there were scratches on the right side of her neck under the jaw, one to one and one-half inches in length, the right elbow was sore and tender, with a one-half inch square abraded area, and there were scratches on the right little finger. There were scratches to the left of the mouth and to the right of the nose, and there were abraded areas on both knees. There were three or four blue spots and an abraded area between the right knee and hip. There were scratches on both ankles and a hematoma about one inch square on the left leg. Her neck was marked and sore. There was generalized pelvic tenderness, especially on the right lower quadrant, with abraded areas on the right upper abdomen and over right hip. A hematoma was noted on the labia minora on the right side. This physician testified that when he saw the prosecutrix she was tense and agitated. The appellant asserts the Court erred in allowing the physician to testify relative to the condition of the prosecutrix because such testimony did not point to the commission of a crime. A review of the record does not show any proper objection by the appellant to the testimony of the physician, except objection was made to the form of one question propounded to the physician by the Solicitor. This objection was sustained by the trial Judge and the question was properly reformed and answered. We think the testimony of the condition of the prosecutrix was properly admitted. Evidence of the physical and mental condition, and the appearance or demeanor of the prosecutrix after the alleged offense, is admissible. 75 C.J.S. Rape § 57b, at page 530. It has also been held that on prosecution for rape it is competent to prove the physical condition of the prosecutrix immediately after the outrage, as tending to prove the commission of the offense. 44 Am.Jur., Rape, Section 73, at page 944. In State v. Wagstaff, 202 S.C. 443, 25 S.E.2d 484, this Court held that in prosecution for statutory rape, permitting the father of the prosecutrix to testify regarding her physical condition on her return to her home, on the day involved, was not error. We do not think the testimony of the physician was too remote, since it appears that his examination of the prosecutrix was conducted within a few hours after the alleged rape. In the case of Allford v. State, 31 Ala.App. 62, 12 So.2d 404, it was held that a physician was properly permitted to testify as to bruises appearing on the body of the prosecutrix when examined five days after the alleged offense. In addition to what we have said, we point out that the admission or rejection of proffered testimony is largely within the sound discretion of the trial Judge and his exercise of such will not be disturbed by this Court on appeal unless it can be shown that there has been an abuse of discretion, a commission of legal error in its exercise, and the rights of the appellant have been thereby prejudiced. State v. Gregory, 198 S.C. 98, 16 S.E.2d 532. This exception is overruled.

The appellant imputes error to the trial Judge in permitting the Solicitor to propound certain questions which he contends were leading. He points to six instances from the record. In considering this exception we must keep in mind that it is well settled that where an objection is made to a question on the ground that it is leading, a wide discretion is vested in the trial Judge and his ruling thereon will not be disturbed in the absence of abuse of discretion. State v. Lyles, 210 S.C. 87, 41 S.E.2d 625, and State v. Murphy, 216 S.C. 44, 56 S.E.2d 736, 737 where it was said:

'We find no basis for appellant's second question. The trial Judge sustained her objections to the leading questions asked by the Solicitor and/or counsel assisting him. If opposing counsel persist in asking leading questions, although ruled out, then the aggrieved party, if he considers his cause injured thereby, should move for a mistrial. We do not find in this record where there was sufficient cause to invoke such a remedy. While on this subject, we desire to again state that it is seldom that the prefacing of a question by the phrase 'whether or not' relating to a material matter, removes it from the inhibited class of a leading question; and invite attention to the opinion of this Court authored by Mr. Justice Stukes in State v. Cook, 204 S.C. 295, 28 S.E. (2d) 842.'

In the light of the foregoing decisions, we have examined the record in this case and the instances where the appellant charges the trial Judge with error. On four of the occasions to which appellant alleges error, the trial Judge sustained the objection made. The trial Judge, in another instance, without objection being made by the appellant, and on his own motion, sustained an objection to a question propounded by the Solicitor, and instructed the jury to disregard the question as asked, but he permitted an answer to the question when it was properly reformed. An examination of the record of the other instance, to which appellant directs our attention, shows that no objection was made by him nor was the question leading. We find no abuse of discretion on the part of the trial Judge in his rulings in this connection. If the appellant felt that he had been prejudiced by the Solicitor asking leading questions, even though objection thereto had been sustained, then he should have moved for a mistrial upon such ground. The record shows that no such motion was made. This exception is overruled.

The appellant charges that the trial Judge committed error in failing to grant a new trial on the ground that he was held in custody an unreasonable and abnormal length of time prior to being charged with the commission of a crime. The record shows that the appellant was arrested on November 12, 1959. He does not contend that his actual arrest was illegal. It is his contention that the failure on the part of the arresting officers to take him before a Magistrate or Judge to be dealt with according to law, made his detention illegal. A...