Matthew J. Perry, Columbia, S. C., for Edward Williams.
James A. Hutto, Jr., Columbia, S. C., for John Morris.
Daniel R. McLeod, Atty. Gen., for State of South Carolina, Columbia, S. C., and Edward B. Latimer, Asst. Atty. Gen., Columbia, S. C., for respondents.
HEMPHILL, Chief Judge.
At the April 1962 term of General Sessions Court for Richland County, South Carolina, John Morris was convicted of murder, and Edward Williams of Accessory Before the Fact to Murder. The indictment1 reads as follows
"At a Court of General Sessions, begun and holden in and for the County of Richland, in the State of South Carolina, at Richland County Court House, in the County and State aforesaid, on the second Monday of April in the year of our Lord one thousand nine hundred and sixty-two.
"The Jurors of and for the County aforesaid, in the State aforesaid, upon their oath, Present:
"That John Morris and Edward Williams on the 3rd day of January in the year of our Lord one thousand nine hundred and sixty-two with force and arms, at Richland County Court House, in the County of Richland and State of South Carolina, in and upon one Martha Green Roof, feloniously, wilfully and of their malice aforethought, did make an assault, and that the said John Morris and Edward Williams her the said Martha Green Roof then and there feloniously, wilfully and of their malice aforethought with a loaded pistol did shoot, hit, strike and wound; giving to the said Martha Green Roof mortal wounds of which said mortal wounds the said Martha Green Roof did die in Richland County, South Carolina, on the 3rd day of January, 1962.
"And so the Jurors aforesaid, upon their oath aforesaid, do say that the said John Morris and Edward Williams, her the said Martha Green Roof then and there, in the manner and by the means aforesaid, feloniously, wilfully and of his malice aforethought, did kill and murder against the form of the Statute, in such case made and provided, and against the peace and dignity of the State.
"And the Jurors aforesaid, upon their oath aforesaid do further Present:
"That John Morris and Edward Williams late of the County and State aforesaid, on the 3rd day of January in the year of our Lord one thousand nine hundred and sixty-two with force and arms, at Richland County Court House in the County and State aforesaid, did wilfully and unlawfully carry a deadly weapon usually used for the infliction of personal injury, to wit: a pistol concealed about his person, he and the said John Morris and Edward Williams, then and there not being on their own premises, and not being a peace officer in the actual discharge of their duty as such, against the form of the Statute in such case made and provided, against the peace and dignity of the State.
"And the Jurors of and for the County aforesaid, in the State aforesaid, upon their oath; Present:
"That John Morris late of the County and State aforesaid on the 3rd Day of January in the year of our Lord one thousand nine hundred and sixty-two with force and arms, at Richland County Court House, in the County and State aforesaid, in and upon one Martha Green Roof feloniously, wilfully and of his malice aforethought, did make an assault, and that the said John Morris her the said Martha Green Roof then and there feloniously, wilfully and of his malice aforethought, did with a loaded pistol shoot, hit, strike and wound; giving to the said Martha Green Roof thereby and upon the body of her the said Martha Green Roof mortal wounds of which said mortal wounds the said Martha Green Roof did die in Richland County, South Carolina, on the 3rd day of January, 1962.
"And the Jurors aforesaid, upon their oath aforesaid, do further present that Edward Williams on the 3rd day of January, in the year of our Lord one thousand nine hundred and sixty-two, and at divers other times prior thereto, the exact times being unknown to the jurors aforesaid, before said murder was committed, with force and arms, at Richland County Court House, in the County of Richland and State of South Carolina, unlawfully, feloniously, and of his malice aforethought, did then and there counsel, hire, advise, assist and procure the said John Morris to commit the said felony and murder upon the said Martha Green Roof in the manner and form aforesaid, against the form of the Statute in such case made and provided and against the peace and dignity of the State.
"And the Jurors of and for the County aforesaid, in the State aforesaid, upon their oath, do further Present:
"That John Morris late of the County and State aforesaid, on the 3rd Day of January in the year of our Lord one thousand nine hundred and sixty-two with force and arms, at Richland County Court House in the County and State aforesaid, in and upon one Martha Green Roof feloniously, wilfully and of his malice aforethought, did make an assault, and that the said John Morris her the said Martha Green Roof then and there feloniously, wilfully and of his malice aforethought with a loaded pistol did shoot, hit, strike and wound; giving to the said Martha Green Roof thereby and upon the body of her the said Martha Green Roof mortal wounds of which said mortal wounds the said Martha Green Roof did die in Richland County, South Carolina, on the 3rd day of January, 1962.
"And so the Jurors aforesaid, upon their oath aforesaid, do say that the said John Morris her the said Martha Green Roof then and there in the manner and by the means aforesaid, feloniously, wilfully and of his malice aforethought, did kill and murder against the form of the Statute in such case made and provided, and against the peace and dignity of the State.
"And the Jurors aforesaid, upon their oath aforesaid, did further present, that Edward Williams, late of the County and State aforesaid, on the 3rd day of January, in the year of our Lord one thousand nine hundred and sixty-two, and divers times thereafter, the exact times being unknown to the jurors aforesaid, with force and arms, at Richland County Court House, in the County of Richland and State of South Carolina, wilfully, feloniously and of his malice aforethought did assist, aid, and abet one John Morris, (who as the said Edward Williams at said time well knew feloniously, wilfully and of his malice aforethought in and upon one Martha Green Roof had made an assault in the County of Richland, State of South Carolina, on the 3rd day of January, in the year of our Lord one thousand nine hundred and sixty-two, and who then and there feloniously, wilfully and of his malice aforethought, with a loaded pistol had shot, hit, struck, and wounded the said Martha Green Roof, giving to the said Martha Green Roof, upon her body mortal wounds of which mortal wounds, she did then and there die in Richland County, South Carolina) to escape and avoid being apprehended and punished for committing said murder by aiding and assisting the said John Morris to conceal the commission of said crime and did then and there feloniously, wilfully and of his malice aforethought, harbor, maintain, and aid to escape detection for the commission of said crime, against the form of the Statute in such cases made and provided and against the peace and dignity of the State.
"(Signed) T. P. Taylor Solicitor."
At the trial defendants were represented by counsel of record here. A motion was made as follows:
"MR. PERRY: Your Honor, we have a motion before the jury returns.
"THE COURT: All right.
"MR. PERRY: May it please the Court the indictment in this case against John Morris and Edward Williams charges in three separate counts, first, the offense of murder as to both men as principals; second, the offense of murder as to John Morris, and accessory before the fact of murder as to the defendant, Williams; and third, murder as to the defendant, John Morris, and accessory after the fact of murder as to the defendant, Williams. We move at this time, especially with reference to the defendant, Williams, that the State be required to elect as to which count they will proceed on, that is to say, murder, or accessory before the fact, or accessory after the fact of murder. Obviously the defendant, Williams, would have to be guilty of one or the other. He couldn't be guilty of both murder and accessory before or after the fact, and we feel that he is entitled to be informed of the offense on which he is to be tried.
"THE COURT: Why didn't you make your motion before the jury was drawn.
"MR. PERRY: Actually, Sir, I was waiting for the defendant to be called on to plead. I realize that he was arraigned, but it has been my understanding that the defendant is called upon to plead at the time of the commencement of the trial.
"THE COURT: No. My ruling is that the State is not required to elect."
This was the only motion made prior to taking of testimony.
After conviction appeal was duly had to the Supreme Court of South Carolina, which, on November 18, 19632 affirmed in the conviction which carried the death sentence.3
Subsequently each accused, filed a petition in the Supreme Court of the United States asking for a Writ of Certiorari; this was denied June 22, 1964. 377 U.S. 1001, 84 S.Ct. 1935, 12 L.Ed. 2d 1050. Rehearing was denied October 12, 1964, 85 S.Ct. 24. Execution of each and both were thereafter scheduled for November 13, 1964. This effectuated a removal of the stay4 of execution issued by the Chief Justice of the Supreme Court of South Carolina December 13, 1963.5
On November 9, 1964 each petitioner argued before the Supreme Court of South Carolina for a further stay of...
