State v. Taylor

• Decision Date: 31 August 1948
• Docket Number: 16125.
• Parties: STATE v. TAYLOR.
• Court: South Carolina Supreme Court

49 S.E.2d 289

213 S.C. 330

STATE v. TAYLOR.

No. 16125.

Supreme Court of South Carolina

August 31, 1948

Joseph B. Clements and H. E. Yarborough, Jr., both of Florence, for appellant.

J Reuben Long, Sol., of Conway, for respondent.

OXNER Justice.

Appellant a Negro about thirty years of age, was convicted of rape and a sentence of death by electrocution imposed. The only question raised by the exceptions is whether the Court below erred in refusing a motion for a new trial upon the ground that the evidence was insufficient to support the verdict. There was no motion for a directed verdict.

In studying the record after the case was argued, we concluded there was a serious question as to whether the method pursued by the officers in seeking to aid the prosecutrix in identifying appellant by his voice violated the right guaranteed to him under Article 1, Section 17 of the Constitution, of not being compelled to be a witness against himself. Although there was no objection to this testimony and its admissibility is not challenged by the exceptions, it is well settled that where the death penalty is involved, it is the duty of this Court to examine the record for any errors affecting the substantial rights of the accused, even though not made a ground of appeal. A reargument of the case was ordered to afford counsel an opportunity for discussing the admissibility of the testimony mentioned.

The prosecutrix is a young White woman who lived with her husband and three children near the City of Florence. Appellant and his wife lived with his brother-in-law in the same vicinity. Both houses are located just off of Turner's Lane, a road leading from the National Cemetery Road to the residence of E. K. Turner. The offense is alleged to have occurred between 10:30 and 11:00 o'clock on the night of August 21, 1946, in a patch of woods close to Turner's Lane. Appellant denied any connection with the crime and one of the major questions in controversy was the ability of the prosecutrix to identify him. She testified that while it was not sufficiently dark to prevent recognition of a person at a short distance, she was so nervous and frightened that she did not look at the face of her assailant and only observed his color, size and clothing. She sought to identify him mainly by his voice.

The Sheriff and several other officers were promptly notified of the crime and arrived at the scene between 11:00 and 12:00 o'clock that night. They immediately commenced a vigorous investigation. The next morning about 7:00 or 8:00 o'clock, the Sheriff arrested appellant at a home in Florence where he was employed as a cook and carried him to the county jail. Several hours later he had three or four other Negro prisoners, who worked as trusties around the court house and jail, were required to line up facing the officers. The prosecutrix was then brought into the room and asked to stand behind them, but was not advised as to the one suspected. Each Negro was required to repeat certain words which the prosecutrix had previously stated were used by the person who assaulted her. This procedure was described by Deputy Sheriff Barnes as follows:

'Q. All right, Mr. Barnes, were you down there at the jail when that identification was made down there? A. Yes, sir.

'Q. Tell us what happened down there? A. Well, we put five of them in a lineup and we stood Coker (appellant) between two about the same size men, they were all pretty near the same size.

'Q. Were all five men practically the same size? A. Practically the same size and had them facing me and Mr. Wright and I, myself, questioned them, I made them say over and over, each one of them, the things that he was supposed to have said to her. I made them say it several times.'

After this was done, the officers stated to the prosecutrix that if she could identify any one of these Negroes as her assailant to touch him. Deputy Sheriff Barnes and the Sheriff testified that the prosecutrix immediately identified appellant as the person who assaulted her. According to several witnesses for the defense, the prosecutrix first started toward one of the other Negroes but when cautioned by the Sheriff to 'be sure you are right,' she paused and then placed her hand on appellant.

The testimony of the prosecutrix relating to the occurrence at the jail was as follows: 'They told the colored boys to all talk, to say what that boy had told me that night, they made each one of them repeat them words, one by one until everyone had repeated it, but they did talk one by one. So after they had repeated it one by one, I stood right in the center right where I was standing when I came in back of them and I pointed my hand at this same boy and this man here (indicating) told me, he said, 'No, don't point your hand,' said, 'Go and touch him, put your fingers on his back,' and I was afraid even to touch him and they said, 'No, Mrs. Purvis, we want you to touch him.' So I walked just a step or two up to him and punched him in the back and whenever I punched him, they all scattered off and this man turned around and looked me square in the face. I looked him square in the face and he did me, and that is when I recognized him as the one there that night. It was kind of dark, it wasn't a pitch dark night, the moon wasn't shining bright but it was light enough I could see, you know, fairly well.

'Q. You are confident he is the one? A. Oh, yes; and that voice that said them words over and over to me, I would never forget that.'

The following is taken from her testimony on cross-examination:

'Q. Why was it that you attempted to identify him without ever looking at his face? You said that after you identified him he turned around and you looked him full in the face but you had already identified him before that? A. Oh, yes I identified him by his voice but after I identified him----

'Q. You weren't afraid to identify him, the identification as far as you were concerned was by the voice and the voice alone? A. Yes, sir * * * and the height of him and the weight of him.'

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'Q. The only identification you have of this boy then is that you recognized his voice? A. Yes, sir.

'Q. And that is the only thing? A. And the height and weight of him and them words he spoke in the jail that morning. It was just as much him as if he was saying them right when it happened because I would never forget it.'

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'Q. Then you were going by size more than you were by voice? A. No, the main thing I went by was the voice and he had on a white shirt and tan pants.'

The only question which we find it necessary to pass upon is whether it was proper for the officers to compel appellant to repeat some of the expressions alleged to have been used by the person who attacked the prosecutrix for the purpose of enabling her to identify him by his voice. We have, therefore, recited only so much of the testimony as is necessary for a proper understanding of this question.

The privilege against self-incrimination is firmly imbedded in the American system of jurisprudence. A provision similar to that found in our Constitution is embodied in the Constitution of the United States and of practically all the states. However, the decisions of the courts as to its scope and purpose are widely divergent and often conflicting. It is generally agreed that the constitutional guaranty extends to all testimonial utterances by the accused. We have held that the privilege also covers testimonial compulsion under any circumstances. State v. Griffin, 129 S.C 200, 124 S.E. 81, 82, 35 A.L.R. 1227. It was there stated: 'The line of cleaverage is whether the proposed evidence is the testimony of the defendant, or evidence in itself, unaided by any statement of the defendant.' The weight of authority...