State v. Wagstaff

• Decision Date: 12 April 1943
• Docket Number: 15526.
• Parties: STATE v. WAGSTAFF.
• Court: South Carolina Supreme Court

25 S.E.2d 484

202 S.C. 443

STATE v. WAGSTAFF.

No. 15526.

Supreme Court of South Carolina

April 12, 1943

A L. King, of Georgetown, for appellant.

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

BAKER Justice.

At the Spring term, 1941, of the Court of General Sessions for Georgetown County the appellant above named was convicted upon an indictment, brought under Code Section 1111, for the carnal knowledge of a woman child under the age of 16 years. The indictment also charged three other young men as co-defendants with being present at the time and place in question and aiding and abetting the appellant in the commission of the crime. A verdict of not guilty as to two of these co-defendants was directed by the Court, and the jury found the other co-defendant not guilty. The appellant however, was found guilty with recommendation to the mercy of the Court, whereupon he was sentenced to imprisonment for the term of five years; and the case comes to this Court upon his appeal. All persons involved were of the white race.

The State offered testimony tending to show that on the 14th day of November, 1940, the appellant and his co-defendants took with them upon a boat down the river at the City of Georgetown a young woman whose name is given in the indictment, but who will hereinafter be referred to simply as the young woman. It appears from the State's evidence that the boat was stopped at two places at which the appellant and the young woman went ashore together; and that finally the group arrived at an old abandoned boat with upper and lower compartments where they all remained until sometime late in the night; and that the young woman left the defendants and returned to her home about midnight. Shortly thereafter she became very sick and was suffering from nausea, when she was taken to the Conway Hospital where she died in a very few minutes after her arrival.

The physician who examined her at the Conway Hospital testified for the State, and we quote the following from his testimony:

"The hymen was ruptured, the vagina was dilated. That is as far as I went with the examination.

"Q. By that, do you mean that some instrument had penetrated that? A. The vagina--yes."

One of the Deputy Sheriffs of Georgetown County testified at length with reference to his investigation of the case and as to statements made to him by the defendants; and among other things he testified that the appellant stated to him "that while he was aboard of the boat at the foot of Meeting Street, on the water front, that he did have a sexual intercourse with" the young woman; and that appellant further stated that he asked his three co-defendants "to go topside, that was when he had the sexual intercourse with her and that when he got to the corner of Prince and King Street that he went on out in the back of" the house of one of his co-defendants "in an open lot there and stayed with" the young woman. There was no dispute in the evidence that the group, consisting of the five persons above referred to, did take the boat trip, but the appellant in his testimony in his own behalf unequivocally denied all the charges made against him.

The father of the young woman testified that on November 14, 1940, the day of the alleged occurrence, his daughter was a little over 13 years of age, that is to say, that she was then under the age of 14 years. And her mother testified that, as shown by the family Bible which was introduced in evidence, she was born on June 9, 1927, which would indicate that on November 14, 1940, she was 13 years, 5 months and 5 days old. On the other hand, the adoptive mother of the appellant testified that the young woman was well developed and looked to be about 16 years of age.

At the close of all the testimony (only a part of which is narrated above) the appellant made a motion for a new trial, but the motion was overruled by the presiding Judge, to wit, Honorable Homer S. Blackwell, Special Judge. The exceptions charge the Court with error in overruling this motion and also in numerous other particulars.

The young woman's death ensuing so soon after having been in the company of the defendants, it appears that a warrant was first taken out against them for murder, but evidently was afterwards withdrawn, because the indictment against them was found under Section 1111 above referred to, the crime charged being commonly known as statutory rape; and there was no evidence tending to prove any other charge against the defendants or any of them. However, it was practically impossible to prevent some reference being made in the course of the proceedings to the fact of the young woman's death. The cause of her death is not shown by the record, but it is stated in the brief of appellant's counsel that it was probably due to some poisonous substance which she took.

One of the exceptions charges the Court with error because in the examination of the jurors on their voir dire the presiding Judge referred to the young woman as "the deceased," giving her name. But obviously this was not error because the Court's reference to her decease was merely for the purpose of identification. And aside from this, counsel for the appellant made no objection whatever at the time.

There are other exceptions which also charge the Court with error on the subject now under consideration. The Sheriff in his testimony relating to his investigation of the case, stated, without having been asked the question, that on the night of the death of the young woman a warrant was handed to him charging the four young men with murder; whereupon counsel for the appellant moved that the answer be stricken out, but the Court ruled that it was merely a preliminary statement; and we are of opinion that the ruling was correct. State v. Floyd, 174 S.C. 288, 177 S.E. 375. But during the further course of the Sheriff's examination he testified that the morning after her death he took the defendants to a funeral home where the body of the young woman was, and said to them: "Boys, there is what you have done." When this statement was made counsel for appellant immediately and properly objected, and the Court promptly sustained his objection, whereupon the Solicitor said to the witness, "Sheriff, just skip over what happened there."

Counsel for the appellant, however, complains that the trial Judge should have gone further and that he should have instructed the jury not to consider but to disregard this testimony. There was no request, express or implied, on the part of counsel that the Court should instruct the jury to this effect, and we see no obligation which rested upon him to do so in view of the fact that he had immediately sustained counsel's objection to the testimony, and the jury will be presumed to have understood that it was out of the case.

In this connection, it will be observed that one of the grounds of the motion for a new trial was that the Solicitor in his closing remarks to the jury referred to the appellant as if he were being tried on the charge of murder. But the transcript of record shows that no objection was made by counsel at that time, and that the point was first made upon the motion for a new trial. The question is, therefore not properly before this Court, in view of the rule laid down in the case of State v. Meehan, 160 S.C. 111, 158 S.E. 151, requiring among other things a showing that timely objection was interposed. See, also State v. Mishoe, 198 S.C. 215, 17 S.E.2d 142, and the cases therein cited.

Some of the officers testified in regard to statements made by appellant's co-defendants, and while the exceptions in this respect admit that the Court definitely ruled that any such statements could not be considered against the appellant, the charge of error is made that the Court did not so instruct the jury, evidently meaning that he did not so instruct them in the course of his general charge. But the record repeatedly shows that the presiding Judge stated clearly, in the presence of the jury, that any statement alleged to have been made by a co-defendant was competent only as to himself unless made in the presence of the other defendants. There were several rulings of the Court to this effect, and they were so plainly expressed that the jury could not have misunderstood them. Among other rulings of this character we quote the following: "I said I instructed the jury that any statement that defendant made with reference to the other defendants and not in their presence would not be competent testimony as to the other defendants."

We find no error here. State v. Holmes, 171 S.C. 8, 171 S.E. 440.

There were some questions asked by the Solicitor with reference to a certain sweater alleged to have been owned by the appellant but to have been worn by the young woman upon the occasion in question; but the Court held that the witness was not competent to say what the nature of a stain thereon was, and furthermore, that there was not sufficient testimony to show that the proffered garment "was worn or in the possession of any of the defendants on that afternoon," and hence it was excluded and was never introduced in evidence. In the light of the Court's ruling the claim of error in this regard does not appear to be well founded.

The appellant also charges that the presiding Judge committed error in allowing the father of the young woman to testify as to her age without a showing that the record of her...