State v. Takis

• Decision Date: 14 January 1944
• Docket Number: 15610.
• Parties: STATE v. TAKIS.
• Court: South Carolina Supreme Court

28 S.E.2d 679

204 S.C. 140

STATE v. TAKIS.

No. 15610.

Supreme Court of South Carolina

January 14, 1944

Price & Poag, of Greenville, for appellant.

W A. Bull, Sol., of Greenville, for respondent.

BAKER Justice.

I regret that I cannot find myself in accord with the opinion of Mr. Acting Associate Justice SEASE in which the conviction of the appellant is affirmed.

The opinion quotes a portion of the governing law when the prosecution relies wholly upon circumstantial evidence to establish the guilt of the accused, as laid down in State v. Kimbrell, 191 S.C. 238, 4 S.E.2d 121, 122, but the paragraph following the quoted paragraph from said case is just as applicable and potent and reads as follows: "Every circumstance which is relied upon by respondent as material must be brought to the test of strict proof. All of the facts proved must be consistent with each other, and, taken together, should be of a conclusive nature and tendency, producing a reasonable and moral certainty that the appellant and no one else committed the offense charged. It is not sufficient that they create a probability, though a strong one; and if, therefore, assuming all the facts to be true, which the evidence tends to establish, they may yet be accounted for upon any hypothesis which does not include the guilt of appellant, then the proof fails. The reason for this is that all presumptions of law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent until he is proved to be guilty. As has often been stated, it is not sufficient to establish a probability of guilt arising from the doctrine of chances that the fact charged is likely to be true."

It is quite true that ordinarily the State, upon the trial of an accused for a homicide, does not have to show motive, but where, as in this case, the State undertook to prove motive as a part of its chain of circumstantial evidence against the accused, and without which there would have been no "corroboration of the primary fact of guilt," then motive became most material, and the law as stated in the paragraph quoted above from the Kimbrell case is apposite.

I have studied the record in this case and agree with the statement in the opinion of Mr. Justice SEASE, "that measured by the circumstantial evidence rule, this testimony is insufficient to prove adultery" on the part of the deceased. In fact, in my opinion it was unfair to the memory of the deceased that the State injected in the case such flimsy circumstances in a desperate attempt to show motive on the part of the appellant. And such testimony was unfair to the appellant.

While the argument of the prosecuting attorney to the jury, not having been taken stenographically, is of course not in the record, the order of the trial Judge refusing a new trial shows that the alleged adulterous conduct on the part of the wife (the deceased) of the appellant, and an alleged Greek custom in such case, was strenuously argued to it as the motive for the homicide, and was therefore strongly relied upon by the State, as a circumstance to prove the guilt of the appellant. What effect this testimony had upon the verdict of the jury is known only to the members thereof; but in the light of the other circumstantial evidence in the case, I can reach no other conclusion than that it swayed the jury into rendering the verdict which it did.

Without passing upon the sufficiency of the other testimony in the case to justify the trial Judge in submitting the question of the innocence or guilt of the appellant to the jury, motion for a directed verdict of not guilty not having been made, I cannot help but reach the conclusion that the appellant, even if it was unnecessary for the State to show motive on his part, was so prejudiced by the testimony which attempted to relate to the alleged adultery of the deceased (and the argument of the Solicitor thereabout), and this material (or immaterial) link in the chain of circumstances relied upon by the State to establish the appellant's guilt, that justice demands that the appellant be granted a new trial.

I of course concur in that portion of the opinion of Mr. Justice SEASE in which it is held that it was not necessary for the trial Judge to charge the law of manslaughter.

STUKES, J., and E. H. HENDERSON, A. A. J., concur.

T. S. SEASE, Acting Associate Justice (dissenting).

The defendant, Alek Takis, was tried in the Court of General Sessions for Greenville County, at the November, 1942, term, upon an indictment charging him with the murder of his wife, Esther Takis. The undisputed testimony shows that deceased was brutally murdered in the early morning hours of August 7, 1941, in her bed room in the home of defendant. The jury returned a verdict of guilty with recommendation to mercy. A motion for a new trial was made and argued before the trial Court. Whereupon, the motion was overruled and the trial Judge sentenced defendant to life imprisonment.

Upon the trial, before the Honorable A. L. Gaston, presiding Judge, and a jury, no one testified to having witnessed the event which caused the death of Esther Takis. For the purpose of establishing its case, the State relied upon circumstantial evidence adduced by various witnesses and exhibits. In addition to his general plea of not guilty, the defendant maintained that he had nothing to do with the event that caused the death of his wife and maintained that some one had entered his home and murdered his wife.

The State offered testimony tending to show the following facts and circumstances, many of which are denied or traversed by defendant's testimony: The deceased was brutally attacked in her bed room in home of defendant; the killer grasped his victim by the throat with his left hand and dealt a death blow on the forehead with an axe held in his right hand defendant and his wife were sleeping alone in the home in separate rooms thirty feet apart; defendant, about 2:45 A. M., August 7, 1941, alarmed Mrs. Hunt and her husband, his neighbors across the street from his home, and asked them to come quick, his wife's face was covered with blood; Mrs. Hunt hurriedly dressed and ran over at once and was shortly followed by her husband, they found Mrs. Takis on her bed, she was very bloody and blood was gushing out of a wound on her forehead; upon arrival of Mrs. Hunt, defendant picked up an axe which was partially under the bed; Mrs. Takis apparently recognized Mrs. Hunt and said, "I called you twice and you wouldn't come;" before going to Mrs. Hunt's to give the alarm, defendant took time to put on his pants and shoes; a telephone was in the home and police and doctor were not called until after Hunts arrived at the scene; defendant, upon arrival of Mr. Hightower, a policeman, told him he was awakened by coughing at a house next door and then heard groaning in his wife's room, he then got up and went to his wife's room and found her behind the chifforobe which had been pulled out slightly from a corner in which it sat; the bed on which Mrs. Takis was found was saturated with blood and she was bleeding freely from the axe wound in forehead, but no blood was found on the back of chifforobe or on floor back of chifforobe; Mr. Hightower, upon his arrival, asked what had happened, and defendant replied that some one had come in and beaten up his wife; later upon being questioned further, defendant admitted the house was thoroughly locked from the inside at the time he found his wife, with exception of a half-raised window and screen in living room, and he did not believe any one had broken in the house, telling the officers that when he went for Hunts, he unlatched from inside front screen door in living room, and so testified to this at the trial; the half-raised window and screen in living room had on the outside, about the middle, a flower pot with flower therein extending well above the bottom of window sill, and on the inside, extending nearly the...