State v. White

Citation246 S.C. 502,144 S.E.2d 481
Decision Date13 October 1965
Docket NumberNo. 18408,18408
PartiesThe STATE, Respondent, v. David WHITE, Appellant.
CourtUnited States State Supreme Court of South Carolina

Matthew J. Perry, Columbia, John H. Wrighten, Charleston, Ernest A. Finney, Jr., Sumter, for appellant.

Solicitor, R. Kirk McLeod, Sumter, for respondent.

LEWIS, Justice:

This is the second appeal by the defendant from a death sentence for rape. The first was reversed and a new trial ordered because of error in the charge. State v. White, 243 S.C. 238, 133 S.E.2d 320. Upon a retrial the defendant was again convicted and the death sentence imposed.

While the defendant has appealed upon several grounds. The only question which we need consider is whether the lower court erred in refusing to sustain the objection of the defendant to the following portion of the argument made by the Solicitor to the jury:

'If a snake would bite you or one of your children, would you let him go and bite again? Gentlemen, from the testimony from the stand, I have got a lot more respect for a snake than that brute. How would you like to see him coming in your bedroom or your daughter's bedroom with this butcher knife? * * *

'I don't know whether you have got daughters or not, I believe one or two of you are not married. But everybody has got a mother. Not everybody, but most everybody has got a sister, daughters. Let him go, let him come back to Williamsburg County. Let him come in your wife's bedroom or your mother or daughters, any of them, what would you do? * * *

'How, if this young lady was your sister, how would you feel? How, if she was your wife, how would you feel? How, if she was your daughter, God only knows, how would you feel? Gentlemen, she is all of that to somebody. She is a daughter, she is a sister, she is a wife. And but for the grace of God that could be your sister, your daughter or your wife. And under those circumstances, gentlemen, what would you do under the testimony you heard from that stand? Mercy to him that shows mercy. Mercy turns her back on the unmerciful * * *.

'Gentlemen, you heard the testimony. I feel in this case very, very strongly and deeply. I feel that each of you do. But when you go out and deliberate, when you get to thinking about the mercy they are asking, they don't want justice in this case. All they want is mercy. They got nothing to ask you for. Then if you give him justice, exactly what are you going to do? But when you get back there and consider giving him mercy like they are going to ask you for, think about your wife, think about your daughters, think about your sister or your mother, being in the same position as this young lady, with a knife at her throat and a brute on top of her.'

Counsel for the defendant made timely objection to the foregoing argument upon the ground that such statements constituted an effort to have the jury identify the facts of this case with their mothers, wives, sisters, and daughters, and was therefore highly prejudicial to the defendant. The objection was overruled, as was a motion by the defendant for a mistrial upon the same grounds. The lower court ruled that the foregoing argument was proper and therefore no attempt to take corrective action was made.

It has long been the rule in this State that a wide discretion is allowed the presiding judge in dealing with the range and propriety of argument of counsel, and ordinarily his rulings on such matters will not be disturbed.

However, an improper argument of counsel representing the successful party, which materially prejudices the right of the losing party to obtain a fair and impartial trial, is ground for a new trial where the effect of the improper argument was not sufficiently counteracted by the trial court, and when timely objection was interposed so as to preserve the right to relief. State v. Gilstrap, 205 S.C. 412, 32 S.E.2d 163. As stated in the cited case: 'The rule followed in this State, and we think in most jurisdictions, is that if upon the whole case, it appears to the Court that the defendant was prejudiced by the language used, as the result of which he did not have a fair and impartial trial, it would be the duty of the Court to reverse the case and remand it for a new trial.'

A somewhat similar but less inflammatory argument was characterized as follows in the Gilstrap case: 'An argument of this nature addressed to the jury tends to completely destroy and nullify all sense of impartiality in a case of this kind. Its logical effect is to arouse passion and prejudice. Jurors are sworn to be governed by the evidence and it is their duty to regard the facts of a case impersonally. We have no idea that the able Solicitor intended to arouse prejudice or passion. But statements of this character are well calculated to bring about this result.'

The State contends however that, assuming the argument to be improper, it could not have prejudiced the defendant because of the overwhelming proof of guilt, relying upon the decision in State v....

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22 cases
  • Quillien v. Leeke, Civ. A. No. 69-475.
    • United States
    • U.S. District Court — District of South Carolina
    • September 5, 1969
    ...of his plea by reason of such confession. 16 State v. Worthy (1962) 239 S.C. 449, 467-469, 123 S.E.2d 835; State v. White (1965) 246 S.C. 502, 507, 144 S.E.2d 481; In re Anderson (1868) 69 Cal.2d 613, 73 Cal.Rptr. 21, 447 P.2d 117, 123-128; Cf. Winston v. United States, 172 U.S. 303, 313, 1......
  • State v. Hamilton
    • United States
    • South Carolina Court of Appeals
    • March 12, 2001
    ...judge is allowed wide discretion in dealing with the range and propriety of argument of the Solicitor to the jury. State v. White, 246 S.C. 502, 144 S.E.2d 481 (1965); State v. New, 338 S.C. 313, 526 S.E.2d 237 (Ct.App. 1999). The defendant bears the burden of proving the improper argument ......
  • Simmons v. State
    • United States
    • South Carolina Supreme Court
    • April 28, 1975
    ...would be for murder or involuntary manslaughter, upon which depended the punishment to be received by appellant. Cf. State v. White, 246 S.C. 502, 144 S.E.2d 481 (1965). The inference was in a form not subject to cross-examination, in violation of the fundamental right of an accused in a cr......
  • State v. Copeland
    • United States
    • South Carolina Supreme Court
    • November 10, 1982
    ...tailored so as not to appeal to the personal bias of the juror nor be calculated to arouse his passion or prejudice. State v. White, 246 S.C. 502, 144 S.E.2d 481 (1965). The trial judge is vested with a broad discretion in dealing with the propriety of the argument of the solicitor to the j......
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