State v. Whitener
| Decision Date | 08 February 1955 |
| Docket Number | No. 16960,16960 |
| Citation | 228 S.C. 244,89 S.E.2d 701 |
| Parties | The STATE, Respondent, v. Guy V. WHITENER, Appellant. |
| Court | South Carolina Supreme Court |
C. T. Graydon, Columbia, R. Aubrey Harley, Newberry, for appellant.
Solicitor T. P. Taylor, Columbia, for respondent.
At the December, 1953, term of the Court of General Sessions for Richland County, appellant was indicted on three counts, the first charging rape, the second charging carnal knowledge of a woman child under the age of fourteen and above the age of ten years, and the third charging him with aiding and abetting another in the carnal knowledge of the same child within a few hours after appellant had raped her.
On December 14, 1953, appellant gave notice of a motion for change of venue, upon the ground that because of the unfavorable publicity that had been given to the charges against him in the press, on the radio, and otherwise, he could not obtain a fair and impartial trial in Richland County. The motion was heard on December 16, 1953, and refused. He then moved for a continuance upon the following grounds:
(1) That, as disclosed by the affidavits in support of the motion for change of venue, he could not at that time obtain a fair and impartial trial; (2) That the cause would require from three to five days for trial and would therefore not be concluded until a day or two before Christmas, which would be unfair to the defendant; (3) That his counsel had received information to the effect that there were two or three persons, living without the State, who might be material witnesses; and (4) That the solicitor had signed the indictment on the sheet containing the third count, and that the third count, which would thus necessarily have to be in the hands of the jury along with the first two, was such as to be prejudicial to the defendant. This motion was heard on December 16, and refused.
On December 17, when the case was called for trial, appellant's counsel moved for a continuance upon the ground that appellant was so ill that his life would be endangered if he were forced to trial at that time. In support of the motion, his physician, Dr. A. W. Welling of Newberry, South Carolina, testified that appellant at that time had a virus pneumonia and that it would endanger his life to attend trial that morning. Two of the county physicians of Richland county who had been sent by order of the court to the hospital at Newberry, where appellant was, testified that their examination that morning revealed that he had a slight fever, and that he was probably suffering from influenza; that they would not advise his standing trial at that time, but that under proper care and treatment he should be able to stand trial within from three to five days. The case was then continued to the morning of Monday, December 21, 1953.
At the call of the case for trial on December 21, appellant's counsel again moved for a continuance on the ground that he was too ill to stand trial. After consideration of affidavits of Dr. A. W. Welling and Dr. B. M. Montgomery, submitted in support of the motion, the court again sent the two county physicians to Newberry for the purpose of examining him; and upon their return they testified on the afternoon of the same day that his temperature was less than one degree above normal, and that they had found no evidence of virus pneumonia, pneumonitis, or any condition that in their opinion would make it dangerous to his life or health to stand trial at that time. The motion for continuance was then refused and the case ordered for trial on December 22, 1953.
Upon the call of the case for trial on the morning of December 22, appellant's counsel stated that appellant was in the court house, but was having a chill and high fever. The county physicians were again called and, after having examined him, testified that his temperature was perfectly normal and that he was, in their opinion, able to face trial. Appellant was then called to the witness stand by his counsel, and testified that he had had a severe attack of chills and fever the day before, and had had a 'weak spell' a few minutes before. His wife was also sworn and testified that he had had a chill while at the hospital the afternoon before, and that he had had a weak spell a few minutes before. Thereupon appellant's counsel again moved for a continuance on the ground that he was physically unable to go to trial; and the motion was refused.
Appellant moved:
1. To quash the indictment, upon the ground that it charged entirely distinct offenses;
2. To require the state to elect on which of the three counts it would go to trial; and
3. To strike the third count as charging an offense not forming a part of or connected with those set forth in the first two counts.
The motion to quash was refused, and the motion to require election was granted. Thereupon the state elected to go to trial on the first count. Appellant's counsel then stated that they desired to go to trial on counts one and two, and that count three be stricken out, whereupon, and at their request, it was so ordered.
The trial began at 2:30 p.m. on December 22; the taking of testimony was completed on December 23; and the case went to the jury at 11:35 a.m. on December 24. At 1:30 p.m. the jury returned, requesting clarification of the difference between count one and count two of the indictment; and having received instructions in that regard, they retired, and at 1:50 p.m. on December 24, 1953, returned a verdict of 'Guilty of rape, with recommendation to the mercy of the court.' A motion for a new trial was thereafter made and refused and appellant was thereupon sentenced to serve a term of fourteen years in the South Carolina Penitentiary or a like term upon the public works of Richland County. He now appeals to this court on numerous exceptions, which will be hereinafter discussed.
Pending the hearing of the appeal, appellant gave notice that he would move before this court for an order suspending the appeal and transferring the cause to the Court of General Sessions for Richland County for the purpose of allowing him to move there for a new trial upon after discovered evidence. The motion and the appeal on the merits were argued together before this court at the October 1954 term; and the motion will be adverted to in the course of this opinion.
The prosecuting witness, eleven years old, lived with her mother, her fourteen year old brother, and her step-father, a painter, on Jones Street, in the eastern part of the City of Columbia, whither they had moved from West Columbia some two weeks before September 17, 1953, the date of the alleged offense.
Appellant, a lumber manufacturer, forty-nine years of age, and married, lived in Newberry, South Carolina. He had known the prosecuting witness and her family for about two years, his first acquaintance with them having occurred in connection with the painting of a house for him; had visited them at their home in West Columbia; and, when they were preparing to move to the Columbia address, he had, at the request of the prosecuting witness' mother, driven in company with the prosecuting witness and another member of the family to see the new location.
The prosecuting witness testified, in substance, as follows:
On the afternoon of September 17, 1953, while she was waiting to catch a bus to go on an errand for her mother to a laundry in West Columbia, appellant drove up in his car and offered her a ride. He took her to Hunter's Motor Court, went to the office, and, having gotten a key to cabin No. 3, drove there, and in spite of her remonstrance, took her by the wrist and made her go in with him. He locked the door, offered her a drink of whiskey, which she refused, and then told her to take off her clothes. She refused, and he 'took them off for me', and then 'he told me to go lay in the bed, and I did, and he took off his clothes', and proceeded to have sexual intercourse with her. She testified that when he started to get on top of her 'he put my hands behind my head and kept trying to mash down, and I told him it was hurting, and I started crying'. After about an hour of this, he told her to go into the bathroom and wipe herself off, which she did; and then at his request she lay on the bed and he 'played with' her for some time. Then he told her to put on her clothes, and she did so, and they left the motor court in his car. At or near Sawyer's Drug Store there were several boys, one of whom, H. B. Sharpe, appellant invited to get in and ride around with them, which he did. After a while, appellant told Sharpe to get another boy and he would be back in five or ten minutes for them. Sharpe got out of the car, and appellant, after driving around with her, came back and picked up Sharpe and another boy, James B. Coleman. She testified that she did not know either of these boys, and that appellant introduced her to them. They all went back to Hunter's Motor Court, and to the same room; and there, in the presence of the two boys, appellant committed an unnatural sexual act upon her with his mouth.
The testimony of the prosecutrix was substantially corroborated by that of Sharpe and Coleman, both of whom testified also that when they went into the room the bed was in disorder, and that appellant stated to them that he had already had intercourse with her. Each of these boys gave his age as sixteen years.
They left the motor court between 9:00 and 10:00 o$hclock that evening, and appellant drove back to the drug store, where Sharpe and Coleman got out. He was driving the prosecutrix to her home when he was stopped by a city patrolman who, under orders from headquarters, was on the lookout for this car. Appellant was taken to police headquarters in a police car and the prosecutrix was taken there in appellant's car by police officer Derrick. As Derick was getting out of the car at headquarters, there fell out of the car a key, to...
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