State v. Sharpe

• Decision Date: 14 November 1961
• Docket Number: No. 17847,17847
• Citation: 122 S.E.2d 622,239 S.C. 258
• Parties: STATE, Respondent, v. Israel SHARPE, Appellant.
• Court: South Carolina Supreme Court

Page 622

122 S.E.2d 622

239 S.C. 258

STATE, Respondent, v. Israel SHARPE, Appellant.

No. 17847.

Supreme Court of South Carolina.

Nov. 14, 1961.

Dowling, Dowling & Sanders, Beaufort, for appellant.

Randolph Murdaugh, Sol., Hampton, for respondent.

MOSS, Justice.

Israel Sharpe, the appellant herein, was indicted at the 1959 June term of the Court of General Sessions for Beaufort County and charged with the crime of assault with intent to ravish. The indictment alleged that the crime took place on the night of May 5, 1959. The alleged victim was a young woman about twenty-one years of age. The presiding Judge appointed the firm of Dowling, Dowling and Sanders to represent the appellant because he was without employed counsel.

The appellant was tried and convicted at a special term of the Court of General Sessions held in Beaufort County, South Carolina, on June 30, 1959. Following the conviction, a motion for a new trial was made, heard and refused. Thereafter, the appellant was sentenced to death. Section 16-72 of the 1952 Code of Laws of South Carolina. Timely notice of intention to appeal to this Court was given.

After the jury was impaneled and sworn, counsel for the appellant made a motion that the trial Judge sequester all witness in the case. Such motion was granted. However, at the request of the Solicitor, the trial Judge permitted Sheriff J. E. McTeer to remain in the court room for the purpose of assisting the Solicitor. The appellant asserts that this was error.

In the recent case of State v. Britt et al., 235 S.C. 395, 111 S.E.2d 669, this identical question was decided. There we held that the granting or refusing of a motion for separation or sequestration of witnesses is within the sound discretion of the trial Judge. We also held that the trial Judge had authority to exempt particular witnesses from the operation of the rule or order for exclusion or sequestration. The question as to what witnesses may be exempted is largely a matter within the discretion of the court, and, even after the granting of the rule or order of sequestration, it is within the discretion of the trial court to permit a witness to remain in the court room for the purpose of assisting the prosecution and afterward to testify if the circumstances require it. State v. Johnson, 156 S.C. 63, 153 S.E. 825; 23 C.J.S. Criminal Law §§ 1010 and 1011.

A full examination of the record in this case does not convince us that the trial Judge abused his discretion in permitting the sheriff to remain in the court room for the purpose of aiding and assisting the Solicitor.

The next question for our determination is whether it was error to admit into evidence the alleged confession of the appellant when such was taken while the appellant was in custody. The appellant also asserts that when his alleged confession was given that he was in 'a coercive situation', being at the time in the Beaufort County Jail and under arrest for the crime with which he was charged.

The question of whether a confession is voluntary is one which is addressed to the court in the first instance. If there is an issue of fact as to the voluntariness of a confession, it should be admitted and the jury under proper instructions allowed to make the ultimate determination as to its voluntary character and also its truthfulness. A confession is not admissible unless it is voluntary. It necessarily follows that the burden rests upon the State to show that it was voluntary and there is no presumption of law that it was. The mere fact that a confession is made while the accused is in custody does not render it inadmissible. However, the conduct of the officer obtaining the confession will be rigidly scrutinized, and the fact that it is made while the accused is under arrest is a circumstance along with the other facts and circumstances to be taken into consideration by the jury in determining its voluntariness. State v. Bullock, 235 S.C. 356, 111 S.E.2d 657; 365 U.S. 292, 81 S.Ct. 686, 5 L.Ed.2d 570; and State v. Outen, 237 S.C. 514, 118 S.E.2d 175.

When the State offered evidence of the alleged oral confession of the appellant, a prompt objection was made to such admission on the ground that the State had failed to show that the statement was made freely and voluntarily. The trial Judge then excused the jury, and, in the absence thereof, heard the testimony of the officer concerning the circumstances of the confession. The witness, who was a deputy sheriff, testified that the oral confession of the appellant was freely and voluntarily given and that the appellant was not intimidated, abused or threatened in any manner. No evidence was offered in behalf of the appellant to the contrary. The procedure outlined in the case of State v. Sanders, 227 S.C. 287, 87 S.E.2d 826, had been followed, except the appellant had not availed himself, nor was he required to do so, of the opportunity through his own testimony, or that of other witnesses, to contradict the prima facie showing made by the State as to the voluntariness of his oral confession. The trial Judge admitted into evidence that alleged oral confession of the appellant. The Chief of Police of the City of Beaufort and the Sheriff of Beaufort County thereafter testified that the appellant made an oral confession to each of them and that in such he admitted committing an assault upon the prosecutrix. These two witnesses also testified as to the voluntariness of the oral confession made by the appellant to them. All of the evidence tends to show that the statements made by the appellant were freely and voluntarily given. We point out also that during the charge of the trial Judge to the jury he submitted the issue of whether the confession of the appellant was free and voluntary and, therefore, whether it should be considered or rejected by them. We find no error on the part of the trial Judge in admitting as evidence the oral confession of the appellant.

Prior to the call of this case for trial, the appellant, through his counsel, made a motion for an order to have him committed to the State Hospital for a period of thirty days for examination and observation as to his sanity, as is provided in and by Section 32-927 of the 1960 Cumulative Supplement to the 1952 Code of Laws of South Carolina. This motion was refused and the appellant asserts error.

The appellant, through his counsel, took the position before the trial Judge that since he was charged in a capital case with a sex deviation that he was entitled to be sent to the State Hospital for examination and observation for a period of thirty days. The trial Judge permitted the Solicitor to call as witnesses upon this issue the sheriff and a deputy sheriff of Beaufort County and the Chief of Police of the City of Beaufort, each of whom testified that there was no doubt in their mind that this man knew the difference between right and wrong, and that he was not of unsound mind. The sheriff expressed the opinion that the appellant 'is a very intelligent boy'. This testimony was properly received without objection. It was proper for lay witnesses to express an opinion as to whether the appellant was insane. State v. Stockman, 82 S.C. 388, 64 S.E. 595; State v. King, 222 S.C. 108, 71 S.E.2d 793 and State v. Keller, 224 S.C. 257, 78 S.E.2d 373. It appears that a Dr. Keyserling examined the appellant during the early morning hours after it is asserted the appellant committed the crime with which he was charged. A portion of his written statement was read into the record and was as follows: 'The patient's manner is that of a well oriented individual. He did not appear to be intoxicated and seemed to be perfectly capable of understanding the purpose of his examination. He submitted willingly and apparently without resentment to this examination.'

The appellant called as a witness Dr. Stanley F. Morse, a General Practitioner, who testified hypothetically, he having never examined the appellant. This physician positively testified that he was not in a position to say whether or not the appellant knew the difference between right and wrong.

Section 32-927 of the 1960 Cumulative Supplement to the 1952 Code of Laws, provides that 'Any judge of the circuit court, * * * may order admitted to the State Hospital any person charged with the commission of any criminal offense who shall, upon the trial before him, be adjudged mentally ill or in whom there is a question as to the relation of mental illness to the alleged crime, whether this question is raised by the prosecution or defense or appears to the judge from any evidence brought before him or upon his own recognition. * * *' It is apparent from a reading of the foregoing statute that it was not the intention of the Legislature to make it compulsory that a person be committed to the State Hospital for observation merely because he is charged with a crime. This Court has held that under a statute similarly worded, Section 6239, Code of 1932, that the decision as to whether a defendant in a criminal case should be sent, on motion of his attorneys, to the State Hospital for examination and observation rests in the trial Court's discretion and will not be set aside unless there is a clear showing of abuse of the exercise of such discretion. State v. Chandler, 126 S.C. 149, 119 S.E. 774; State v. Anderson et al., 181 S.C. 527, 188 S.E. 186, and State v. Jones, 201 S.C. 403, 23 S.E.2d 387.

We have carefully reviewed the evidence in the record and we reach the conclusion, based upon such, that the trial Judge did not abuse his discretion when he failed to commit the appellant to the State Hospital. There was, in our opinion, a failure on the part of the appellant to produce any evidence that would warrant the granting of such motion.

The record shows that the trial Judge provided in the sentence he imposed upon the appellant that he be committed to the State Hospital for a period of thirty days for observation...