State v. Saxon, 19737

• Citation: 201 S.E.2d 114,261 S.C. 523
• Decision Date: 06 December 1973
• Docket Number: No. 19737,19737
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. Thomas W. SAXON, Jr., Appellant.

Page 114

201 S.E.2d 114

261 S.C. 523

The STATE, Respondent, v. Thomas W. SAXON, Jr., Appellant.

No. 19737.

Supreme Court of South Carolina.

Dec. 6, 1973.

Luke N. Brown, Jr., Ridgeland, and James B. Richardson, Jr., Parker & Richardson, Columbia, for appellant.

Sol., Randolph Murdaugh and Asst. Sol., Randolph Murdaugh, III, Hampton, for respondent.

LEWIS, Justice:

Appellant, charged with murder, was convicted of voluntary manslaughter and appeals. The questions argued are:

(1) Was it error to require appellant to go to trial within less than three (3) days after arraignment?

(2) Did the trial judge abuse his discretion in refusing to grant a continuance?

(3) Was it error to permit a witness to testify that statements by appellant were freely and voluntarily made?

(4) Did the trial judge err in holding that appellant's statements made following arrest were freely and voluntarily made?

(5) Was the sentence imposed influenced by prejudice or improper considerations on the part of the trial judge?

The first question is based upon Section 17--408 of the 1962 Code of Laws, which provides in part: 'Whoever shall be accused and indicted for any capital offense whatsoever shall have a true copy of the whole indictment, . . . delivered to him, three days at least before he shall be tried for such offense, whereby to enable him to advise with counsel thereupon, . . .'.

Assuming that this statute is still effective, although the death penalty is not now imposed and the present charge is not a capital offense, the right granted to the three days' sight of the indictment must be demanded by a defendant at the time of arraignment and, if no such demand is made, the right is waived. State v. Wright, 140 S.C. 363, 138 S.E. 828.

Appellant was arraigned on Monday, November 27, 1972. No demand for a copy of the indictment was ever made and any right which appellant may have had to claim the rights granted under the statute were thereby waived.

The second question concerns the refusal of the trial judge to grant appellant's motion for a continuance and is related to the first question, in that both invove the contention that sufficient time was not allowed in which to prepare a defense to the charge.

Appellant has, in the statement of this question, recognized the firmly established rule that a motion for a continuance is addressed to the sound discretion of the trial judge.

The offense was committed on October 26, 1972. Appellant was arrested shortly thereafter and released under bond. After his release, he entered a private institution for psychiatric treatment where he remained until about one week prior to trial. Counsel was retained about two (2) weeks before trial. Appellant was arraigned on November 27, 1972, at which time a motion for a continuance was made. The motion was denied and the case was called for trial two (2) days later, on November 29, 1972, when the motion for continuance was renewed and again refused.

When the original motion for a continuance was made on November 27, 1972, the State offered to agree to an order committing appellant to the State Hospital for a period of thirty (30) days for a mental examination, If appellant intended to rely upon insanity as a defense. If the offer had been accepted, the case would have been continued until such mental evaluation could have been made. The offer, however, was not accepted and the record shows that any intention to rely upon insanity as a defense was disclaimed.

There is no support for appellant's contention that he did not have sufficient time to prepare his defense. The record shows that he was ably represented by counsel with adequate opportunity to pursue any available defense. Under these circumstances, the refusal of the motion for a continuance did not constitute an abuse of discretion.

An officer, Henry Garbade, testified as to an incriminating statement made by appellant. He was permitted to testify, over objection, that the statements were 'free and voluntary.' Objection was made upon the ground that such testimony amounted to an opinion of the witness on the ultimate issue that the jury had to decide.

The testimony discloses the circumstances under which the statement was made by appellant and his counsel cross-examined the witnesses in detail to determine whether the statement was voluntarily made. Under these circumstances it was not error to permit the witness to testify that the incriminating statement was voluntary. This is in accord with the general rule that 'testimony of a witness that a confession was voluntary in not inadmissible as amounting to a conclusion or an opinion of the witness, where the circumstances surrounding the confession are in evidence.' Annotation: 114 A.L.R. 974, 975; 23 C.J.S. Criminal Law § 836, page 250; State v. Teal, 108 S.C. 455, 95 S.E. 69.

Appellant also contends that the trial judge was in error in admitting in evidence the alleged incriminating statement, because the evidence conclusively showed that it was not freely and voluntarily made.

The incident, out of which the present charge arose, occurred just after 12 a.m. on October 26, 1972. It followed an...