State v. Robinson

• Citation: 147 S.E. 441,149 S.C. 439
• Decision Date: 14 March 1929
• Docket Number: 12615.
• Parties: STATE v. ROBINSON.
• Court: South Carolina Supreme Court

147 S.E. 441

149 S.C. 439

STATE v. ROBINSON.

No. 12615.

Supreme Court of South Carolina

March 14, 1929

Appeal from General Sessions Circuit Court of Charleston County; E C. Dennis, Judge.

Charlie Robinson was convicted of murder, and he appeals. Affirmed.

Bussey & Brown, of Charleston, for appellant.

James Allan, Sol., of Charleston, for the State.

Statement of Facts.

WATTS C.J.

The defendant above named, Charlie Robinson, a young colored man was indicted at the June, 1928, term of the court of general sessions for Charleston county, charged with the murder of Mamie Smith, a colored woman of ill repute. At the call of the case for trial it was learned that the defendant had neither counsel nor funds with which to employ same, and upon the solicitation of Solicitor James Allan, his honor, Special Judge John I. Cosgrove, appointed Messrs. Bussey & Brown, recent graduates of the Law School of the University of South Carolina, and young members of the Charleston Bar, who had recently assumed the practice of law in the city of Charleston, to represent and defend the defendant, without pay. The case was called for trial on the first day of the September, 1928, term of the court of general sessions for Charleston county before Hon. E. C. Dennis, Presiding Judge. Upon motion of Solicitor James Allan, each juror was placed upon his voir dire as to his belief in the penalty of capital punishment in murder cases. The trial of the case was conducted by Solicitor James Allan for the state, and Messrs. Bussey & Brown for the defendant; it being the first murder case which either Messrs. Bussey or Brown had ever represented, and the first case of any kind whatsoever that Mr. Brown had ever been engaged in, and the second case that Mr. Bussey had ever tried in the court of general sessions, the other being a simple assault and battery case. At the conclusion of the introduction of the testimony and evidence, the presiding judge charged the jury, and in the course of said charge the judge made the following statement to the jury: "You will see from the indictment which you will have the facts as set forth there. You have heard the evidence, now it is my duty to give you the law," to which exceptions are taken. After the case had been given to the jury, and when the jury had been out approximately 2 1/2 hours, it returned and asked his honor for further instructions on the law of malice, on which point his honor further charged the jury, and after deliberating for the short while of approximately 5 minutes, after receiving his honor's last charge on the law of malice, it returned a verdict of "Guilty of Murder." The defendant was then sentenced to die by electrocution, and this appeal is taken from such sentence and conviction.

The questions involved are thus stated by appellant's attorneys:

1. Were the opinions, conclusions, and inferences of the witness John J. Healy, for the state, admissible in evidence as competent testimony?

2. Was there sufficient evidence to prove that the deceased, Mamie Smith, was in extremis, and that she had given up every hope of recovery, at the time of uttering her statement which was admitted as a dying declaration?

3. Was the trial Judge correct in charging the jury as follows: "You will see from the indictment which you will have the facts as set forth there?"

4. Was the trial judge's second charge on and definition of "malice" correct, and if so was such charge applicable to the facts in this case?

First Exception.

That his honor erred in requiring each juror to be placed on his voir dire as to his belief in regard to the penalty of capital punishment in murder cases, and in refusing to allow any juror who did not believe in capital punishment to serve on this case; the error being that, under the laws of the state of South Carolina, a juror believing in capital punishment as the penalty in a murder case is not a prerequisite as to his qualifications to serve as a juror on any murder case.

This exception is controlled by the decision of State v. James, 34 S.C. 49, 52, 12 S.E. 657, at page 658, where the following language was used: "When the juror was asked whether he was opposed to capital punishment, he answered unequivocally that he was. We do not think that the Judge committed error of law in rejecting the juror. In the case of People v. Damon, 13 Wend.

[N. Y.] 351, Chief Justice Savage said: 'Such a juror is unfit. He has prejudged the question, he has made up his verdict without hearing the evidence, and ought to be excluded on common-law principles. It would be a solemn mockery to go through the form of a trial with such a jury, or even with one such juror. *** It would be a misnomer to call such a proceeding a trial."'

The case of State v. James was affirmed in a rehearing of the said case as reported in 34...