State v. Wilkins

• Decision Date: 25 May 1950
• Docket Number: 16362.
• Parties: STATE v. WILKINS.
• Court: South Carolina Supreme Court

59 S.E.2d 853

217 S.C. 105

STATE v. WILKINS.

No. 16362.

Supreme Court of South Carolina.

May 25, 1950

Sam N. Burts, Spartanburg, Arthur D. Rich, Spartanburg H. R. Swink, Gaffney, for appellant.

Samuel R Watt, Sol., Spartanburg, for respondent.

BAKER, Chief Justice.

The appellant, Mandret Wilkins, was indicted on two counts First, Assault with intent to Ravish, and second, Assault and Battery of a high and aggravated nature. The case came to trial at the November, 1949, term of the Court of General Sessions for Cherokee County, on both counts. The jury returned a verdict of guilty of Assault with intent to Ravish (and evidently recommended mercy), and the trial Judge sentenced the appellant to fifteen years in the State Penitentiary, or on the public works of Cherokee County. Prior to the pronouncement of sentence, the appellant made a motion for a new trial, which motion was refused.

The appellant contends, (1) that the evidence against him being circumstantial, it fails to meet the requirements; (2) that there was no overt act indicating an intent to ravish, and therefore the first count in the indictment should not have been submitted to the jury; and (3) that the trial Judge erred in refusing the appellant's motion for a mistrial because of the alleged comment by the Solicitor on the failure of the appellant to testify.

Of course, if the record supports any one of the above exceptions or issues, it would be the duty of this Court to at least grant the appellant a new trial.

The prosecutrix was a trained nurse employed by Cherokee County Hospital, and lived in the Nurses' Home provided by the hospital. This home is located on one of the main streets of the City of Gaffney, near the Cherokee County Courthouse, is a two-story building, and was occupied by eight nurses. The prosecutrix shared an upstairs room with one of the other nurses, who occupied a separate bed in this room at the time of the assault.

On the night of the assault (August 2, 1949) the prosecutrix worked until 11 o'clock, came to the Nurses' Home at about 11:30, and shortly thereafter, she and her roommate retired to their respective beds. About 2 o'clock, the prosecutrix woke up. She looked over towards the door to the room and saw a man standing in the doorway. She did not move at first, but when she raised her head, the man started coming to the bed. He caught her around the neck with his hands, his thumbs being to the back of her neck, he placing himself to her back and not facing her. She commenced to scream and when her roommate waked up she and the man were between the two beds, in a standing position, with his hands still around her neck. When her roommate jumped up, this man turned her loose and ran. The prosecutrix saw one side of his face, and recognized that he was a negro. Soon after this man ran down the stairs, a shoe heel from a man's shoe was discovered on the stairs, and left there until after the arrival of officers of the law. The officers picked up the shoe heel which was the only clue at that time as to who had entered the house and committed the assault (and battery) upon the prosecutrix.

For some reason not disclosed by the record, a policeman in the City of Gaffney went to a building in Gaffney known as the Blue Room, in the rear of which building the appellant rented a room, and in this room found a pair of shoes with the heels missing from them. The appellant was there at the time and admitted to the officer that he owned the shoes, and when asked what became of the 'heel,' replied that he tore 'them' off and threw 'them' in the branch. A shoemaker (shoe repairer) with twenty-two years of experience, testified without equivocation, that the shoe heel identified as the one picked up from the stairs in the Nurses' Home came off of one of the shoes which had been taken from the appellant's room, and as aforesaid, there is testimony that the appellant admitted the ownership of those shoes. The testimony of this witness is of such importance that we feel justified in reporting it practically in full, and in question and answer form.

'Direct Examination.

'Q. What are these? A. Heel and shoe; had renewal heels on them. (Takes shoe in left hand and heel in right.)

'Q. Can you tell me where that heel came from? A. Came off this shoe. The heel was put on at a shoe-shop; he ground the base also with the heel. Left a ridge both on the heel and the base; sand them off, makes a much better job.

'Cross-Examination.

'Q. This heel could have come off some other shoe that had been cut down like this? A. I would not think so, sanded like it is.

'Q. This heel could come off another shoe; you are not swearing it came particularly and certainly off this shoe? A. I am swearing it came off that shoe. It has been put on that shoe and sanded down to that base could not be otherwise and leave them marks on it.

'Q. Do you know whose shoe it is? A. I can't tell you nothing about that.

'Q. That the heel came off that shoe, that is just your opinion? A. I know it; the marks are there to show it; just like putting up two pieces of lumber at an angle.

'Q. That is your opinion? You don't know whether it came off another shoe, or not? A. Would not have been made to fit just like this, sanded clear across like it is. This heel remained on the shoe from the time it was put on there until it was knocked or scraped off; that heel has been put on in a shoe-shop; holes show it was nailed to that shoe; it has been nailed to that shoe.

'Q. You don't know whether it was on this shoe, and then off, and then put on another shoe, do you? A. It has been sanded; none of them fits when you put them on.

'Q. A lot of people put them on at home; a lot of people might find a heel somewhere and put it on a shoe? A. Would not be sanded like...