State v. Swilling, 18363

• Citation: 246 S.C. 144,142 S.E.2d 864
• Decision Date: 16 June 1965
• Docket Number: No. 18363,18363
• Parties: The STATE, Respondent, v. James Weldon SWILLING, Appellant.
• Court: United States State Supreme Court of South Carolina

Page 864

142 S.E.2d 864

246 S.C. 144

The STATE, Respondent, v. James Weldon SWILLING, Appellant.

No. 18363.

Supreme Court of South Carolina.

June 16, 1965.

C. Ben Bowen, James Sparks, Greenville, for appellant.

Sol. B. O. Thomason, Jr., Asst. Sol. H. F. Partee, Greenville, for respondent.

BUSSEY, Justice:

Appellant was convicted of the murder of one Christo G. Dunis and sentenced to death by electrocution. The homicide occurred on Sunday, April 5, 1964, at approximately 5:15 P.M., in Pete's Cafe No. 1 in the City of Greenville. At the time, Dunis was manager of the cafe, appellant was a customer therein, and his wife was employed as a waitress. After a dispute between the parties, relative to the service, or lack thereof, being rendered to appellant, he withdrew a pistol from his pocket and fired in the direction of Dunis at close range six times. One of these bullets proved fatal to Dunis who died the following afternoon.

Appellant interposed a plea of self defense and was represented at the trial below and upon appeal here by court appointed counsel who have most assiduously and earnestly represented him and prosecuted this appeal.

In keeping with our invariable rule of in favorem vitae, we have not only considered the exceptions on appeal and the questions briefed and orally argued in this court, but we have also independently searched the record for prejudicial error, whether or not objected to below or made a ground of exception here. As a new trial will have to be ordered, for the reasons set forth below we limit our discussion of the evidence to only such portions thereof as are necessary to the issues before us.

Appellant was arrested at his home without a warrant approximately two hours after the shooting by two police officers who were called to the scene and were thereafter trying to locate appellant. Appellant either voluntarily surrendered himself, or at least quietly submitted to arrest. No warrant was issued for him until April 16, when a warrant was issued by the coroner of Greenville County, charging him with murder. Appellant asserts that the trial judge should have directed a verdict of acquittal because he was arrested without a warrant, never taken before a coroner, judge or magistrate and confronted with the charges against him or advised of his constitutional rights, and that he was thus denied equal protection of law and due process of law as required by the Constitutions of South Carolina and the United States.

We are not concerned with any issue as to the admissibility of evidence, by was of confession or otherwise, obtained as a result of the arrest and detention which appellant contends was unlawful. Assuming, without deciding, that any of appellant's constitutional rights were violated, nothing in the present record appears to indicate that his trial and conviction were in any manner influenced or brought about by any such alleged violation of his constitutional rights. No authority is cited by appellant's counsel in support of the contention that a verdict should have been directed for the reasons assigned. All decisions coming to our attention are to the contrary. Even assuming that his arrest and detention without a warrant were unlawful, such would not entitle him to a directed verdict. The rule is concisely stated in 5 Am.Jur. (2d) 796, Arrest, Section 116, as follows:

'The fact that an original arrest may have been unlawful does not affect the jurisdiction of the court, nor is it a ground for quashing the information. And it does not preclude trial of the accused for the offense.'

It is universally held that even where a defendant is unlawfully arrested in a foreign state and, as a result of such unlawful arrest, brought within the jurisdiction of the court where the crime was committed, the unlawful arrest of the accused is no ground for discharge or exemption from punishment. One of the leading cases on this point is our early case of State v. Smith, 1829, 1 Bailey 283, 19 Am.Dec. 679. For a full discussion of the authorities on this particular point see the opinion in State v. Waitus, 226 S.C. 44, 83 S.E.2d 629, cert. den. 348 U.S. 951, 75 S.Ct. 439, 99 L.Ed. 743. While most of the decisions deal with unlawful arrest beyond the borders of the state wherein the crime was committed, we call attention to the West Virginia case of State v. Snodgrass, 91 W.Va. 553, 114 S.E. 136, wherein the arrest alleged to be unlawful took place within the territorial jurisdiction of the trial court. There the court said,

'Assuming, without deciding, that the defendant's arrest was unlawful under the circumstances, the sheriff not having a warrant at the time, this would not discharge him from prosecution for the offense, nor would it justify his discharge from custody after a proper warrant had been issued and he had been held under that warrant.'

Here, a proper warrant was subsequently issued by the coroner, appellant was indicted, and there is no merit in the contention that the trial judge should have directed a verdict for any of the assigned reasons.

Evidence on behalf of The State was to the effect that the appellant was in the particular restaurant on Saturday afternoon, April 4th, the day preceding the fatal shooting. A witness Brown testified to the effect that on such occasion appellant was drunk, had an altercation with the deceased, and threatened the deceased. A witness for The State, Libby Keith, testified that on the same afternoon, apparently shortly after appellant was supposed to have left the restaurant, he was in the place of business where she worked; that he was drunk and had made the statement, 'I'm going to get a gun and somebody will be dead over the weekend.'

Appellant asserts that there was error in admitting the testimony of these two witnesses as to his intoxicated condition on the afternoon preceding the homicide. This contention we think is fully disposed of by the decision of this court in State v. Bush, 211 S.C. 455, 45 S.E.2d 847, wherein it was held that there was no error in admitting evidence to the effect that on the last visit of the accused to the home of the decedent prior to the fatal assault he was drinking and disorderly, made threats against the deceased, and was directed not to return to that home again. Since the testimony of these witnesses both involved threats allegedly made by appellant, his condition at the time of the alleged threats with respect to either sobriety or intoxication was a relevant and proper circumstance for the consideration of the jury.

Appellant also argues that the testimony of the witness Keith as to the threat allegedly made should have been excluded as the words spoken were not shown to have any reference to the deceased. While general threats, which are not shown to have any reference to deceased, are not as a rule admissible on the question of malice, deliberation or premeditation, still such a general threat is admissible when other facts adduced give individuality to it so that the jury may infer that the threat referred to the deceased. 40 C.J.S. Homicide § 206c, p. 1110.

Here, we think the evidence as to the threat made directly to the deceased on the afternoon in question clearly gave individuality to the general threat testified to by the witness...