State v. Waitus

• Decision Date: 14 September 1954
• Docket Number: No. 16908,16908
• Citation: 83 S.E.2d 629,226 S.C. 44
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Arthur WAITUS, Alias Fateye, Appellant.

Page 629

83 S.E.2d 629

226 S.C. 44

The STATE, Respondent, v. Arthur WAITUS, Alias Fateye, Appellant.

No. 16908.

Supreme Court of South Carolina.

Sept. 14, 1954.

Harold R. Boulware, Columbia, Vernoid R. Bunch, Georgetown, for appellant.

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

STUKES, Justice.

Rather than repeat them, we incorporate herein the facts of the murder of which appellant, a Negro, has been twice convicted by reference to the opinion (by Mr. Justice Oxner) in the appeal from the first conviction. State v. Waitus, 224 S.C. 12, 77 S.E.2d 256, 264.

At the end of it was the following: 'In concluding this opinion, we desire to recognize the conscientious and able manner in which counsel for appellant, who served without compensation, have discharged their duties. The arduous task imposed upon them has been skillfully handled.' After the verdict of guilty was returned in the second trial, which is presently under review and motions for judgment non obstante veredicto and for new trial were denied, the counsel petitioned to be relieved upon their considered conclusion that there was no reversible error in the trial and that two other attorneys had been drawn into the case by members of appellant's family, who were thereupon substituted as counsel by order of the court and they perfected the appeal. The order concluded as follows: 'It is Further Ordered, that it is the duty of the Court to recognize the services rendered by the Court-appointed attorneys, J. Shephard Thompson, Meyer C. Rosen and C. C. Grimes, Esqs., wherein their said services have been extra burdensome, both in the rendering of their services and their expenses that they have entailed and which they were required to bear. Their services are worthy of the high traditions of our profession, and this Court expresses its appreciation and commends said attorneys for the fine manner in which they have discharged their professional duties.'

The exceptions which were taken in behalf of appellant by the substituted counsel follow:

1. That the Court committed error in allowing the introduction of the pair of shoes allegedly found in the defendant-appellant's living quarters when the defendant-appellant was not present and allowing in evidence any testimony relating to the pair of shoes.

2. That the Court committed error in admitting the alleged confession of the defendant-appellant since the corpus delicti had not been established.

3. That the Court committed error in refusing to direct a verdict and allowing the case to go to a jury when the corpus delicti had not been established.

4. That the Court committed error in allowing the introduction of the alleged confession of the defendant-appellant.

5. That the Court committed error in admitting in evidence the alleged confession of the defendant-appellant and allowing testimony relating to the contents thereof.

However, upon argument of the appeal counsel disregarded the most of the stated exceptions and filed a well-prepared brief, supported by full oral arguments, which was limited to the following questions:

A. Did the Court err in trying and convicting the appellant, in violation of his state and federally protected rights, after his presence in the jurisdiction has been obtained by fraud, force or violence practiced upon him by state officers?

B. Did the Court err in admitting into evidence the alleged confession of the appellant and allowing testimony relating to the contents thereof?

In keeping with our invariable rule of in favorem vitae, State v. Scott, 209 S.C. 61, 38 S.E.2d 902; State v. Taylor, 213 S.C. 330, 49 S.E.2d 289, 16 A.L.R.2d 1317, we have not only considered the above original exceptions (the most of which would otherwise and ordinarily be deemed to have been abandoned by failure to argue them) and the questions briefed and orally argued in this court, but we have also independently searched the record for prejudicial error, whether or not made the ground of exception or question, and we find none.

The first conviction was reversed and appellant was granted a new trial because of the absence of members of his race from the grand and petit juries. Thereafter a newly-drawn grand jury, which included several members of the Negro race, returned an indictment; and appellant was arraigned for trial before a petit jury panel which contained Negroes, one of whom was accepted for service and was a member of the trial jury which again convicted the appellant.

We proceed to consider the exceptions and questions involved in the instant appeal.

Exceptions 2 and 3 challenge the sufficiency of the proof of the corpus delicti, which in the crime of murder consists of (1) the death of a human being and (2) the causative, criminal act or agency of another. State v. Thomas, 159 S.C. 76, 156 S.E. 169; State v. Epes, 209 S.C. 246, 39 S.E.2d 769; State v. Thomas, 222 S.C. 484, 73 S.E.2d 722; 41 C.J.S. 5, Homicide, § 312. Here the hidden, lifeless body of the victim was found a few hours after death; and post-mortem examination by experts, including a medical college professor, disclosed external and internal proof of death by strangulation which resulted from the application of external force. Manifestly, the proof of the corpus delicti in this case was beyond reasonable doubt.

Exceptions 2, 4 and 5 and question B assign error in the admission in evidence of the confession which was signed by the appellant twelve days after his accusal and arrest. Again, we adopt the relevant contents and conclusion of our opinion upon the first appeal. After statement of the evidence relating to the obtention of the confession, and there is no contention of material variance in it at the second trial, we said:

'It is readily seen that the evidence is in sharp conflict as to the voluntariness of this alleged confession. Under the rule which prevails in this State, the question of whether or not the confession is voluntary is one which is addressed to the Court in the first instance, but if the evidence with respect thereto is conflicting, the jury must be the final arbiter of such fact. Under the circumstances of this case, we think the trial Judge properly submitted this issue to the jury. State v. Miller, 211 S.C. 306, 45 S.E.2d 23; State v. Brown, 212 S.C. 237, 47 S.E.2d 521. The facts here are readily distinguishable from those in State v. Harris, 212 S.C. 124, 46 S.E.2d 682, where a majority of this Court held that the issue of the voluntariness of the confession was properly submitted to the jury, but the United States Supreme Court reversed. 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815. Neither can it be said that the circumstances under which this confession was received violate those fundamental principles of liberty and justice which are protected by the Fourteenth Amendment against infraction by any State. Gallegos v. State of Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86.'

The first exception is concerned with the reception in evidence of a pair of shoes. After appellant fled his home other occupants of the house consented to search of it by investigating officers and in appellant's bedroom they found the shoes. Appellant, who testified, did not deny his ownership of them; but offered testimony that they were of a type in common use in the community. They fit the tracks which were found in soft ground at the scene of the crime and an officer, who was experienced in identification, testified to distinguishing features of the shoes which indicated that they made the tracks, of which latter casts were in evidence. Under these circumstances, they were admissible in evidence. State v. Griffin, 129 S.C. 200, 124 S.E. 81, 35 A.L.R. 1227. Annotation, 31 A.L.R. 204.

There remains for consideration question A, that first presented in the brief and stressed in oral argument, in which it is charged that appellant was returned to the State by fraud, force or violence, which was practiced upon him by the officers, whereby the conviction of appellant should be reversed and set aside, and he be freed from custody. The question imputes facts more favorable, from appellant's viewpoint, than the record supports. When the sheriff of Georgetown County arrested appellant across the North Carolina line he was armed with a warrant which charged appellant with the murder of which he has been convicted; and the sheriff was accompanied by a deputy sheriff of the North Carolina county in which the arrest was made. Appellant submitted to arrest and return to this State without resistance or protest. But that feature of the case need not be further dwelt...