State v. Rasor

• Decision Date: 03 January 1933
• Docket Number: 13547.
• Citation: 167 S.E. 396,168 S.C. 221
• Parties: STATE v. RASOR et al.
• Court: South Carolina Supreme Court

167 S.E. 396

168 S.C. 221

STATE v. RASOR et al.

No. 13547.

Supreme Court of South Carolina

January 3, 1933

Appeal from General Sessions Circuit Court of Laurens County; C. C Featherstone, Judge.

Henry Rasor and others were convicted of murder, and they appeal.

Affirmed.

O. L Long, Sullivan & Wilson, and W. R. Richey, all of Laurens for appellants.

H. S. Blackwell, Sol., R. E. Babb, and Huff & Huff, all of Laurens, and Chas. A. Young, of Greenwood, for the State.

BLEASE C.J.

The appellants, Henry Rasor, Lathan Crisp, and Eugene Crisp, all white, together with Ernest Hitt, white, and Isaiah ("Coot") Richards, colored, were charged, in the court of general sessions of Laurens county with the murder of W. C. Rasor, father of the appellant Henry Rasor, at the home of the deceased at Cross Hill on the night of September 26th, 1931.

The case was first called for trial at the February, 1932, term of the court. The motion of the solicitor for a severance, so as to try the appellants, Rasor and the two Crisps, separately from their codefendants, Hitt and Richards, was granted by the then presiding judge, Hon. S.W. G. Shipp. Hitt and Richards were witnesses for the prosecution. The jury failed to agree upon a verdict, and a mistrial was declared.

The second trial of the case, before his honor, Circuit Judge C. C. Featherstone, was had at a special term of the court, commencing May 2, 1932, and the trial consumed about one week. The result was a conviction of all three of the appellants of murder, with recommendation to the mercy of the court, and the imposition of a sentence of life imprisonment upon each of them. From that judgment, this appeal comes.

The appellants have presented ten exceptions. None of these make any complaint as to the charge of the trial judge. It is especially significant that, although more than fifty witnesses testified in the case, none of the exceptions question the correctness of any ruling of the court as to the admissibility of evidence.

While considering carefully each and every one of the exceptions, for convenience we are able in certain instances to group some of them.

The first, second, third, and fifth exceptions relate to the refusal to grant a continuance of the case beyond the term.

A continuance was requested because of the absence from the court of Mrs. Sue Baggott, a witness for the defense, who, it was shown by the affidavit of a highly reputable physician, could not be present because she was ill at her home in Augusta, Ga. An affidavit on the part of Mrs. Baggott, setting forth the testimony she would give if present, was presented, and the solicitor consented to allow her evidence to be introduced in this manner in the trial. Mrs. Baggott was unable to attend the first trial of the case in the preceding February, and the same affidavit was introduced in evidence by the defense at that trial with the consent of the solicitor. No request for a continuance at the February term was made on account of the absence of Mrs. Baggott. The circuit judge properly held that, since the witness was not a resident of this state, her attendance upon the court could not be required. Even if the judge, at the time of his ruling, felt assured that the witness would be present at a later term, we are unable to hold that there was error in the exercise of the discretion allowed to him under the law in the matter of granting and refusing continuances. In a case such as this, in which there were more than fifty witnesses, some twenty for the prosecution and thirty for the defense, people both old and young, and many who were women, it is exceedingly difficult to have all of them present at any given time. In all probability, if Mrs. Baggott could have attended at a time more convenient to her, some other witness, perhaps equally as important to the defense, may have been absent. In addition, in the instance here, we find that testimony similar to that as given in the affidavit of Mrs. Baggott was related by her mother, Mrs. Alma Leaman, and Miss Margaret Rasor.

Upon receiving information that the special term of court would be held, about one month prior to the holding, counsel for the appellants requested the official court stenographer to furnish them with a copy of the testimony taken at the first trial in February, so that they might have use of that record in the second trial. Since he was busily engaged in court reporting, the stenographer was unable to furnish the transcript. On that account, a continuance was asked to the regular June term following, at which time it appeared the stenographer could furnish the testimony. Counsel for the state also were unable to get a copy of the former testimony. The trial Judge, in refusing the requested continuance for the reason presented, said that the stenographer had his notes in court, and upon any occasion that counsel wished to refer to them, he would allow plenty of time for the stenographer to look up anything desired. The court stenographer was presented as a witness, and read to the jury all such testimony taken at the former trial that was requested of him by the defense. We have not been cited to any authority to the effect that a continuance should be granted because of the failure of a party to have in hand the testimony taken at a former trial of his case. Certainly, in the circumstances here, there was no abuse of the discretion given to the presiding judge.

The third ground, on which the motion for a continuance was based, was due, as counsel stated in making the motion, to the conditions which then and had formerly existed. In substance, it was stated that the trial held in February had probably created more interest than any case ever tried in Laurens county; the courthouse was packed; public opinion was inflamed; the jury considered the case a long time and finally disagreed; the standing of the jury at that trial was divulged and generally made known; the only man who had favored an acquittal was threatened with ostracism in his business and social relations; and that the situation created made it impossible for the defendants to get a fair trial even in May when the court was held. But, admitted zealous counsel, "That spirit is rapidly subsiding. A few weeks ago it was rather intense, today it is a great deal less."

Counsel were allowed to read to the court, as shown by the transcript of record, "certain excerpts from a newspaper," but those are not reproduced. It was stated also by one of the attorneys that he had approached a number of citizens of the town of Laurens and "outlined the facts that I have outlined to you," and "they recalled the fact of this juror having been criticized, but they wouldn't make an affidavit."

As reasons for refusal to grant the continuance motion on that particular ground, the presiding judge stated that there had been no motion for a change of venue, which the defendants had the right to make; that the mistrial in February was some evidence in itself that the defendants could get a fair trial, and that he could not assume on the bare statements made that public sentiment was such that a fair trial could not be had.

On reconsideration of this matter in the motion for a new trial, the circuit judge again called attention to the fact that there had been no motion for a change of venue. He also said: "I may say further that I didn't see any exhibition of inflamed public sentiment during the trial. The crowd was perfectly orderly. I saw no signs that indicated that the public sentiment was in such condition as to keep the defendants from getting a fair trial."

We agree with counsel for the appellants, in the legal position they seem to take, that a defendant in a criminal case is not precluded from asking for a continuance of his case, when public feeling is so aroused against him as to deny him a fair and impartial trial, by his failure to move first for a change of venue. The trial court may very properly, and should, grant a continuance when it appears that conditions are such as to deprive either the state or the defendant from obtaining the fair and impartial trial to which our courts should always look. In deciding this very important matter one not only of great moment to the appellants here, but to the administration of justice in our state as well, we are impelled to sustain the conclusion reached by the presiding judge for certain reasons, briefly stated: The homicide, alleged to have been committed by the appellants occurred in September, 1931. It was more than four months thereafter before they were first put on trial. They went to trial at that time without any suggestion that a change of venue should be had, or a continuance of the case granted because the situation was such that a fair trial would not be given them. That trial resulted in a mistrial. It was two months more before the case was called for trial the second time. Perhaps, as suggested by counsel, there was adverse criticism on the part of some of the citizens of the town of Laurens as to the conduct of one of the jurors, who favored an acquittal of the defendants. Likely, too, there was adverse feeling on the part of friends of the defendants as to the jurors who were reported to have favored their conviction. In every case of great importance, especially one in which a man is charged with the brutal murder of his own father, there is sure to arise conflicting views and opinions on the part of people. A case of that nature, tried anywhere, is likely to create great public interest, and our courts, open to the public under the provision of the Constitution, which provision is intended to help protect people charged with crime, are usually attended by large crowds. Jurors, however honest they may be in...