State v. White
| Citation | 133 S.E.2d 320,243 S.C. 238 |
| Decision Date | 19 November 1963 |
| Docket Number | No. 18125,18125 |
| Parties | The STATE, Respondent, v. David WHITE, Appellant. |
| Court | United States State Supreme Court of South Carolina |
Jenkins & Perry, Columbia, for appellant.
R. Kirk McLeod, Solicitor, Sumter, for respondent.
Two young ladies, employees of the State Board of Health, were in Kingstree, South Carolina, for the purpose of putting on a puppet show in the elementary schools in Williamsburg County in conjunction with the dental health program of the schools. They were staying together in a motel on the night of November 28, 1961, when awakened by a Negro man holding a knife at the throat of one of the ladies. Both were forced to disrobe and the assailant carnally assaulted each while the other was locked in a closet.
The Appellant was identified by one of the ladies as the assailant and his fingerprints were found on her pocketbook. He was tried and convicted in the Court of General Sessions for Williamsburg County of the charge of rape and sentenced to death as provided by law.
Prior to trial, two able members of the Williamsburg County Bar were appointed to represent the defendant. Upon conviction, notice of intention to appeal was filed; and this Court appointed the present attorneys of record to represent Appellant in his appeal.
After the appointment of counsel of record, this Court, upon motion of counsel, issued an Order granting Appellant permission to move in the Circuit Court for a new trial upon after-discovered evidence. Such motion was denied after hearing by Order of the Honorable Steve C. Griffith, dated March 9, 1963.
Subsequent thereto, an additional motion for a new trial was made upon the ground that Appellant was not represented by an attorney at the Preliminary Hearing. This motion was denied June 18, 1963, by Order of the Honorable James Hugh McFaddin. Both Orders have been made a part of the record and now before this Court.
The fact that Appellant was not represented by counsel at the Preliminary Hearing is not in dispute. As provided by Section 43-232, Code of Laws of South Carolina, 1962, Appellant requested the Preliminary Hearing in writing and the same was held February 16, 1962. At that time, Appellant made no plea or statement. The Magistrate ordered that Appellant be held for Grand Jury investigation.
Appellant now contends the Court erred in refusing to grant a new trial on the ground he was not represented by counsel at the Preliminary Hearing, relying on Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193.
In Hamilton the petitioner was not represented by counsel at arraignment. The Supreme Court held that arraignment is a 'critical step' in Alabama criminal proceedings and that the denial of counsel at such time requires reversal of conviction even though no prejudice was shown.
In White the petitioner entered a plea of guilty at a Preliminary Hearing while not represented by counsel. Upon arraignment, while represented, he pleaded not guilty and not guilty by reason of insanity. During trial the plea of guilty made at the Preliminary Hearing was introduced in evidence. The Supreme Court in reversing the conviction held that although it was not necessary for Appellant to enter a plea at the Preliminary Hearing the fact that Appellant did so makes the Preliminary Hearing in the White case as 'critical' a stage as arraignment in the Hamilton case.
In South Carolina, the Preliminary Hearing serves the purpose of determining whether the State can show probale cause and such hearing can only be requested by one charged with crime, and he is not permitted to plead or even make a sworn statement. If he chooses to make an unsworn statement, he may do so; but it can in nowise be used against him thereafter. The burden being upon the State to show probable cause, the defendant is not permitted to offer any evidence but may cross-examine the State's witnesses fully and such evidence is not admissible in any subsequent proceedings. Appellant, therefore, has not been denied due process of law, as a Preliminary Hearing under South Carolina criminal procedure is not a 'critical' stage of the proceedings and may be waived by failure to request same in writing 10 days before Court. State v. Irby, 166 S.C. 430, 164 S.E. 912.
The argument that Appellant's interrogation of one of the witnesses at the Preliminary Hearing enabled a witness to identify Appellant by his voice is without merit. Any cross-examination of witnesses by Appellant at the Preliminary Hearing was voluntarily made; and if such formed the basis of testimony tending to establish Appellant's identity, it would be competent. State v. Taylor, 213 S.C. 330, 49 S.E.2d 289, 16 A.L.R.2d 1317. Further, Appellant's Fingerprints were found on the pocketbook and he was positively identified by one of the ladies assaulted.
Appellant did not testify in his own behalf and his counsel after the jury had been excused at the end of the trial Judge's charge for the purpose of hearing such requests as counsel might wish to make concerning the charge, stated: This request was refused on the ground that to call attention to it 'would be perhaps more prejudicial than not.'
South Carolina, like many of the States, has the Constitutional provision that '[n]o person * * * shall be compelled in any criminal case to be a witness against himself.' Art. 1, Sec. 17, Constitution of South Carolina, 1895. Section 26-405, Code of Laws of South Carolina, 1962, provides: 'In the trial of all criminal cases the defendant shall be allowed to testify if he desires to do so, and not otherwise, as to the facts and circumstances of the case * * *.' This Court has said:
State v. Howard, 35 S.C. 197, 14 S.E. 481.
The precise question of whether it is error, after request is made, to refuse to charge the jury that the failure of an...
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Gasque v. State, 658
...the failure to appoint counsel where no plea offered at the preliminary hearing could be offered in evidence at trial, State v. White, 243 S.C. 238, 133 S.E.2d 320 (1963); DeToro v. Pepersack, 332 F.2d 341 (4th Cir. 1964); or where the accused could not under state law offer a plea at the p......
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