State v. Worthy, No. 17865

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: John H. Nolen, Sol.; MOSS; LEWIS; LEGGE; Otherwise in full accord with the leading opinion, by MOSS; OXNER; OXNER; For the reasons so cogently stated by LEGGE; TAYLOR
• Citation: 239 S.C. 449,123 S.E.2d 835
• Parties: The STATE, Respondent, v. Benjamin Franklin WORTHY, Appellant.
• Decision Date: 30 January 1962
• Docket Number: No. 17865

Page 835

123 S.E.2d 835 239 S.C. 449 The STATE, Respondent,
v.
Benjamin Franklin WORTHY, Appellant. No. 17865. Supreme Court of South Carolina. Jan. 30, 1962.

Page 837

[239 S.C. 451] R. E. Browne, III, T. Louis Cox, Louis P. Howell, Spartanburg, Frank P. Cooke, Gastonia, for appellant.

[239 S.C. 452] John H. Nolen, Sol., J. Wright Nash, Asst. Sol., Spartanburg, for respondent.

[239 S.C. 453] MOSS, Judge.

Benjamin Franklin Worthy, the appellant herein, was indicted by the Grand Jury of Spartanburg County at the June 1960 term of the Court of General Sessions and charged with (1) rape, (2) assault with intent to ravish, and (3) assault and battery of a high and aggravated nature. The indictment alleged that the crimes took place in Spartanburg County on April 3, 1960. The appellant being without counsel, the Presiding Judge appointed competent attorneys to represent him. This case was continued at the June term of court on motion of the attorneys for the appellant on the ground that they had not had sufficient time to prepare for trial. The case was also continued at the July term because of the absence of a witness for the State.

At the 1960 October term of Court of General Sessions, this case was called for trial and the appellant moved to quash the venire on the ground that Negroes had been systematically excluded from the jury panel. This motion was refused after the taking of the testimony of the Clerk of the Court. The Trial Judge found as a fact that there 'has been no discrimination, or the systematic exclusion of jurors on account of race, color or creed.'

This case was called for trial on October 19, 1960. The appellant was duly arraigned and entered a plea of 'Not Guilty', and announced his readiness for trial. In the selection of the jury, all prospective jurors were placed upon their individual voir dire. The jurors were asked the statutory questions contained in Section 38-202 of the 1952 Code of Laws. After the jury had been so selected and duly sworn, one of the attorneys for the appellant addressed the court and the following took place:

[239 S.C. 454] 'Your Honor, at this time, as attorneys for the defendant, we would like to change our plea of not guilty to a plea of guilty with recommendation to mercy.

'The Court: What do you say to that, Solicitor?

'Mr. Nolen: Your Honor, the State of South Carolina cannot consent to the offer of such a plea. As I understand, it is an offer of a plea of guilty with recommendation to mercy?

'The Court: Yes, sir.

'Mr. Nolen: No, sir, Your Honor.'

Thereafter, the trial proceeded, without any objection on the part of the appellant. He was convicted of rape and sentenced to death. Sections 16-71, 16-72, of the 1952 Code of Laws of South Carolina. It appears from the evidence that the prosecutrix, a white woman, fifty-six years of age, a resident of Cowpens, Spartanburg County, South Carolina, was assaulted and raped in her home at about 5:00 o'clock on the morning of April 3, 1960. She was unable to identify the person who attacked and raped her, other than that he was a Negro man. The appellant, who lived approximately two hundred yards from the home of the prosecutrix, was arrested at about 2:00 o'clock P.M. on April 3, 1960. He was taken to the Spartanburg County jail and questioned by five officers, three of said officers being in plain clothes with their weapons concealed, and two being in uniform with their weapons showing. Upon being questioned by the officers, after being advised of his

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rights, the appellant confessed that he had assaulted and raped the prosecutrix. The confession made by the appellant was recorded on an electrix recording device. The following morning, the Sheriff of Spartanburg County, in the presence of police officers, questioned the appellant and he again confessed to having attacked and raped the prosecutrix. This confession was also recorded on an electric recording device. Upon the trial of the case, the two confessions of the appellant were admitted in evidence upon the showing that the same were freely and voluntarily made by him. The electric tape recordings of [239 S.C. 455] the confessions were not offered in evidence, the State relying upon the oral testimony of the officers present when the alleged confessions were made.

It appears from the record that all of the evidence in this case was made available to the attorneys for the appellant, including the tapes on which the confessions were electronically recorded. Counsel heard these tapes played and knew the contents thereof. At no time during the trial of the case did the appellant demand that the State produce the recordings nor was there objection made to the officers testifying as to the confessions of the appellant on the ground that the tape recordings were the best evidence and the oral testimony of the confessions inadmissible. The sole objection to the admission of the oral testimony of the confessions of the appellant was on the ground that he was not fully advised of his rights, that he was not represented by counsel, that there were five law enforcement officers of the County in the room with him at the time of his confessions, and that the confessions, under such circumstances, cannot be considered free and voluntary, and that he was intoxicated at the time the confessions were made. This objection to the admission of the confessions was overruled.

The appellant offered no testimony. At the close of the testimony in behalf of the State, the appellant moved for a directed verdict on the grounds: (1) That the State had failed to prove penetration; (2) That the confessions be stricken from the evidence on the ground that the electric tape recordings were the best evidence of such confessions, and the secondary oral testimony of the confessions should not have been admitted in evidence; and (3) That the appellant was coerced into making the confessions, and hence, they were not free and voluntary. The motio for a directed verdict was refused.

After conviction of the appellant, motion for a new trial was made on the following grounds: (1) That it was error for the Court to refuse to quash the venire on the ground [239 S.C. 456] that Negroes had been systematically excluded from the jury panel; (2) That the confessions of the appellant were involuntary; (3) Assuming that the confessions were voluntary, then the taped recordings of such were the best evidence and it was error to permit oral testimony as to the confessions; (4) That there is a complete lack of proof of penetration necessary to make out the crime of rape; (5) That since the appellant, in the presence of the jury, offered to change his plea of 'Not 'Guilty' to a plea of 'Guilty with a Recommendation to Mercy', the State having refused to accept such, it was prejudicial error to thereafter try him before a jury who had heard the offer to make such a plea; and (6) That the refusal of the Trial Judge to charge the jury, as requested by the appellant, that the jury had the sole discretion as to whether a verdict should be rendered with mercy or without a recommendation to mercy. The motion for a new trial was denied and the appellant was sentenced to suffer death by electrocution as provided by law. Notice of appeal to this Court was duly given and the appellant asserts that he is entitled to a new trial because of the foregoing errors committed in the trial of his case.

The first question for determination is whether there was error on the part of the Trial Judge in refusing to quash

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the venire, on the ground that Negroes are systematically excluded from the jury panel because of their race or color. In the case of State v. Waitus, 224 S.C. 12, 77 S.E.2d 256, this Court reviewed the constitutional and statutory law of this State relating to the qualifications of jurors and the method of selecting them. It was there held that where a Negro objects to either a grand or petit jury because of alleged discrimination against his race, he has the burden of proving that qualified Negroes were intentionally or systematically excluded because of their face or color, and if there has been an unconstitutional discrimination, the motion to quash should be granted. The evidence in the instant case is conclusive that there has not been any exclusion of any person from the jury panel because of race, creed, [239 S.C. 457] color or nationality. The evidence shows that a Negro man was a member of the grand jury that indicted the appellant. The evidence further conclusively shows that many Negroes have served as jurors in the civil and criminal courts of Spartanburg County. We think the Trial Judge properly refused the motion of the appellant to quash the venire. In addition to what we have said, we point out that this question was not argued in the brief of the appellant and we, therefore, consider it abandoned. State v. Collins, 235 S.C. 65, 110 S.E.2d 270. Upon the oral argument of this case, counsel for the appellant also stated that they had abandoned this exception and did not now contend that there was any merit in such exception.

The next question for our determination is whether it was error to admit into evidence the alleged confessions of the appellant when such were taken while he was in custody, it being asserted that he was not fully advised of his rights, and because of such he alleges that the confessions were not free and voluntary.

The question of whether a confession is voluntary is one which is addressed to the court in the first instance. If there is an issue of fact as to the voluntariness of a confession, it should be admitted and the jury under proper instructions allowed to make the ultimate determination as to its voluntary character and also its truthfulness. A confession is not admissible unless it is voluntary. It necessarily follows that the burden rests upon the State to show that it was voluntary and there is no presumption of law that it was. The...