Petition — Allen v. South Carolina
Supreme Court brief1977
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IN THE
Jt 4 0 Ki5
OFFice oF THE F
SUPRENE Count, ua
SUPREME COURT OF THE UNITED STATES —
October Term, 1975
No. 75- leG e) 5
ARCHIE ALLEN,
Petitioner,
THE STATE OF SOUTH CAROLINA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF SOUTH CAROLINA
ROBERT L. HALLMAN, Jr.
Jenkins, Perry & Pride
924 Hampton Street
Columbia, South Carolina 29202
JACK GREENBERG
JAMES M. NABRIT, IIL
PEGGY C. DAVIS
DAVID E. KENDALL
10 Columbus Circle, Suite 2030
New York, New York 10019
ANTHONY G. AMSTERDAM
Stanford University Law School
Stanford, California 94305
ATTORNEYS FOR PETITIONER
> da , aia ®
- ¢ : . '
LNDEX TABLE OF CASES
Page Page
Atkinson v. South Carolina, 408 U.S. 936 (1972)...... cee 13
Citation to Opinion Below ree er eeeeeeeeeeeeeeeereeeeeeeeee 1 . Brady Vv. United States, 397 * s 742 (1970) se eee eeeeeee . 26
Fowler v. North Carolina, U.S. Supreme Court,
Jurisdiction eee eee eee eee eee ee ee ee ee ee ee | 1 No. 73-7031 e909 0e020200080020086080 eeoeoee e002 688 eooesee 30
Fuller v. South Carolina, 408 U.S. 937 (1972) ...........- 13
Question Presented *eneeneeeveeeeeeeeeeeeeeeeeeeereeeneer ewe eener eee 2 :
Furman v. Georgia, 408 U.S. 238 (1972) ........... 12-16, 26, 30
Constitutional and Statutory Provisions Involved ........ 2 ! Guinn v. United States, 238 U.S. 347 (1915)...... ecccces 15
Jurek v. Texas, U.S. Supreme Court, No. 75-5394....... ee 30
Statement eee eeeeeeeenvneeeeeeeeeeeeeeeeeee eee ewe eee eee rere! 4
Lane v. Wilson, 307 U.S. 268 (1939).......-eeeees TTTTTr 15
Below e*enrenneeeneeneeneeeeneeeeeneeeeeeeeeneneeeeeeneeeeeeeeeee 12
State v. Abney, 109 S.C. 109 S.C. 102, 95 S.E.179
GR 6 ©6000 606060000 64660660646 4468 ee eereeeee ne eee? 27
Reasons for Granting the Writ eee eeeeeeeeeeeeeeeeeeeeneee 12
State v. Allen, Florence County Circuit Court,
THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER No. 74-GS-21-100. ener nreeneee ee ee, enrneeneeeeee *eenreeeeee 14, 17
WHETHER THE IMPOSITION AND CARRYING OUT OF THE
SENTENCE OF DEATH FOR THE CRIME OR MURDER UNDER State v. Bealin, 201 S.C. 490, 23 S.E.2d 746 (1943)..... 27
THE LAWS OF SOUTH CAROLINA VIOLATE THE EIGHTH
OR FOURTEENTH AMENDMENT TO THE CONSTITUTION OF State v. Bellue, 259 S.C. 487, 193 S.E.2d 121 (1972).... 13
THE UNITED STATES *eeeeeeeeneeeeeeeeeeeeneeeeeeeeeneeeee 12
State v. Bowers, 65 S.C. 207, 43 S.E. 656 (1903)........ 20
A. The Perpetuation of Arbitrary Selectivity
Under the New South Carolina Capital State v. Cannon, 260 S.C. 537, 197 S.E.2d 678 (1973).... 28
Punishment Statutes ser ereeneneneeeneeeeneeeeneeeenereeeee 12
State v. Cason, Charleston County Circuit Court,
* Prosecutorial Charging EE, 2keennnete 16 No. cc Ee 14
2. Plea Bargaining eer eeeeneenereeeeeeeeeeeeneeeeee 24 State Vv. Charles, 183 $.Cc. 188, 190 S.E. 466 (1937) “ene ee 17, 24
De Jury Discretion “eee neneneeeeneeeneneeeeeneeeeeeeee 26 State Vv. Craven, Florence County Circuit Court,
No. pC en re ef ef © seer ee eee 14
4. Executive Clemency ee eeeneeeeeeeeeeeeeeeeeee 28
State v. Davis, Dillon County Circuit Court,
B. The Excessive Cruelty of the Penalty of No. po, a as 14
Death eee eeeeneeeeeneneneneneeeeneeneeeeeeeeeeeeeee eee © 30
State v. Davis, Florence County Circuit Court,
‘ No. PP. «cecnnesbateuanouned ene fe ee © *“e eee eeee l4
Conclusion *neeereereneeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeweeeeneneeee 31
State v. Dooley, Sumter County Circuit Court,
No. 76-GS-43-403 es ee ee © een ereneeeeeeeeeeeeeeeeeeeeee 14
State v. Puller, 229 S.C. 439, 93 S.E.2d 463 (1956)..... 19
eie- -iie-
a — ——— .- — — _——_
Page
State v. Gardner, 219 S.C. 97, 64 S.E.2d 130.......++++ 19,27
State v. Gaskins, Florence County Circuit Court,
No. 76-GS-21-472 eee nee eeeneneneeeeeeeeeeeneeeeeeeeeeee
State v. Gibson, 259 S.C. 459, 192 S.E.2d 720 (1972)...
State v. Hall, Greenville County Circuit Court,
Nos. 75-GS-23-1155, 75-GS-23-1156 .........- ceccece
State v. Ingram, Darlington County Circuit Court,
No. 75-GS-16-104 eeeeeeeeneeneeneen een eee eeeeeeneeeneeee
14
13
14
14
State v. Judge, 208 S.C. 497, 38 S.E.2d 715 (1947)..... 19,20
State v. Law, Florence County Circuit Court, No.
7§-GS— 28-180. cc cccccccccccceccccccecesesescosecseoce
State v. Lawson, Richland County Circuit Court,
No. 76-GS-40-B49. cccccccccccccccceccccecsecesecece
State v. McPhee, Orangeburg County Circuit Court,
No. . ) Srrrrrrire rrr Tree et
State v. McDowell, Horry County Circuit Court, No.
TWE—GB— 2S} BAZ. ccccccesceevccceccecessecesceseecscoece
State v. Moseley, 133 S.C. 53, 130 S.E.123 (1925)......
State v. Neeley, Florence County Circuit Court,
No. 76-GS-21-551 ener eneereeneeneeee e*eeeneneeneveeeeeeeeeeee
State v. Norris, 253 S.C. 31, 168 S.E.2d 564 (1969)....
State v. Robinson, Orangeburg County Circuit Court,
No. ,, >, ee ry) tte) Tt rt Pr tr er re
State v. Rumsey, Greenville County Circuit Court,
No. , \ - reerrTy rT TTT TT TTT TTT ttt
State v. Sauls, Florence County Circuit Court,
No. WG=GS— {ZL BEG cccccccccceccccccecccovesececccces
State v. Schneider, Greenville County Circuit Court,
Nos. 75-GS-23-1908, 7S <GB- 29-1723. ccccccccccccoces
State v. Stukes, 73 S.C. 386, 53 S.E. 643 (1905).......
State v. Thomas, Greenville County Circuit Court,
No. TWE—GB— {WG cccccececcccccesceccesecsececssceses
State v. Wakefield, Greenville County Circuit Court,
Nos. 76-GS-23-2183, 76-GS-23-2184......eeeeeneceee
State v. White, 475 S.E.2d 712 (1969) ....-eeeeeeneecees
- iii -
14
14
14
1 Ain
State v. White, No. Circuit Court, Ele
Judicial ae... 2 24
State v. Williams, Greenville County Circuit Court,
Nos. 76-GS-23-414, 76-GS-23-415, 76-GS-23-416...... 14
State v. Wilson, 104 S.C. 351, 89 S.E. 301 SRD Seevese 20
State v. Workman, York County Circuit Court, No. 76-
GS-46-80. ee ee ee eee @ eff © © ne ee @ ee @ & ee eeeeeneeeeeeeee 14
,
STATUTES
Constitution of the United States, Eighth Amendment..... 2,26
Constitution of the United States, Fourteenth
Amendment rv ee @e @e ee ee eee
eee ee ee eee eee ere ee eee ee esree 2
28 U.S.C. §1256(3)..... eocccccccvcccccccsccecoeecs eccces 1
14 Ala. Code Ann. §322 (1958)........... TTTTiTTTTTrT eeee 21
ll Alaska Stat. §14.040 (1975 Sed coccccees eecneces eeve 21
13 Ariz. Rev. Stat. Ann. §457 (1956)......... see. eeces 21
41 Ark. Stat. Ann. §§1504, 901 (1976).......... eecccccecs 21
35 Burns Ind. Stat. Ann. §13-4-2 (1975) ..... cece cece cece 21
8 Calif. Penal Code §193 (West's 1970) ............e0e- ee 21
19 Col. Rev. Stat. §§1-104, 3-104 (1973)..... ceccccccces 21
Conn. Gen. Stat. Ann. §53-13 (1971) .....cccccccccccceces 21
1l Del.Stat. Ann. §§ 632, 4204 (1974) ....... ccc cceeeeee ° 21
Fla. Stat. Ann. 9$782.07, 775.082 (1975) ....cccccceccccs 21
26 Ga. Code Ann. §1102 (1972).........
eee ew ee eee eaeeeeeee 21
38 Hawaii Rev. Stat. §748-7 a ea ee 21
18 Ida. Code Ann. §4007 (1975 OS ee ee 21
38 zii. Stat. Ann. §9-2 (1975 Supp.) ee eee ree ee ee eee eee 21
35 Towa Code Ann. §609.10 (1950) .....ccccccccccccccccces 21
-iv-
21 Kan. Stat. Ann. §§3403, 4501 (1975) ..- ce weceeeecuces
Ky. Rev. Stat. Ann. §§5507.030, 532.020 (1975).........
14 La. Stat. Ann. §31 (West's 1974) ... cc ceeeeeccccscues
17 Maine Rev. Stat. Ann. §609.20 (1974) .....seeeececees
Mass. Ann. Laws, ch. 265, §13 (1976) «---eeeeeeecerceces
27 Md. Code Ann. §387 (1971)... cee eecceeresecceeeseees
Mia. Gri. Boe SINR TE BOND ccccvcccccescscteceessos
Minn. Stat. Ann. §609.20 (1964) .... cc cee ceccececcececee
47 Miss. Code Ann. §97-3-24 (1964) .....ceeeeeeeecceeees
94 Mont. Rev. Code §2508 (1969) .....-ceeceecceccececeess
N.C. Gen. Stat. §14-18 (1971)... cee wcecceeccccccccees
N.D. Cent. Code Ann. §§12.1-16.02, 12.1-32.01 (1975)...
N.H. Rev. Stat. Ann. §§630.2, 651.2 (1975) ....-.-eeeees
N.Y. Penal Law §§70.00, 125.20 (McKinney's 1975).......
28 Neb. Rev. Stat. §403 (1965)... cceeeeeeeeeccerecees
16 Nev. Stat. §200.080 (1973)... cee eccnccceccevcnsecces
2A N.J. Stat. Amn. §113-5 (1970)... cc eeeececscccveccces
29 Ohio Rev. Code §§2903.03, 2929.11 (Page's 1975) ....-
21 Okla. Stat. Amn. §715 (1951)... ccc ee ee cenenevececs
Oreg. Rev. Stat. §§161.605, 163.118 (1975) ......+.--e-
18 Purden's Pa. Stat. Ann. §250.03 (1973) .....-eeeeeees
R.I. G@n. Laws §11-23-3 (1969) ..... cc cccccccccccccccess
S.C. Code
. §1-223 Tee eee eee ee eee eee eee eee eee ee eee
S.C. Code
. §1-237 ee
S.C. Code
. §16-51 COGS 0 00006660 eeseserecsoeesse
« §16-52 (1975 Supp.) .. -.eeseee0e- 2,13-18, 23, 26
13,26
Ann
Ann
S.C. Code ANN. §1-251 wn cee eececececececeeceesesssesces
Ann
S.C. Code Ann
Ann
s.c. Code . §16-55 0. eee eee eee eee
2,19, 26
POS FON.
Page
S. C. Code Ann. §16.55.1 (1974 Supp.)....... TTT TTTTT 27
S. C. COd@ AMM. GIT.1 cn cccccccscccccscees coccccccsece 17
S. C. Code@ ANN. §55-373 (1962)... ccc eccecccccsesecces 3
S. C. Code Ann. §55-641 (1962)....... coseccces covcceces 28
South Carolina Constitution, Art. *, §12 ....ceeeeeees 29
South Carolina Constitution, Art. §14 (1974 Supp.).. 28
South Carolina Constitution, Art. S$, §20........sesee0. 17
22 S.D. Comp. Laws Ann. §16-16 (1969) .......ceececeees 21
39 Tenn. Code Ann. §2910 (1955) .....-.eceees TrTTTiry 22
16 Utah Code Ann. §30-6 (1953)........ eecccerccccscces 22
18 Va. Code Ann. §§2-10, 2-35 (1975) ...ccccecccccccecss 22
38 Vernon's Mo. Stat. Ann. §559.140 (1953) ......eeeeee 21
Vernon's Tex. Stat. Ann. Pen. Code §12.33, 19.04
i scpe0600000006600060600006600666 , see eee ee 22
13 vt. Stat. Ann. §2304 | PRPrTTriTirriT TTT Tee 22
Ww. Va. Code §61-2-4 TAGs coccecceceuces eereee eeeeeeee 22
Wash. Rev. Code Ann. §9A.32.060 (1975)....... TUTTTiTT 22
45 Wis. Stat. Ann. §940.05 (1958)......... PTYTTTITiITiTT 22
6 Wyo. Stat. Ann. §508 ee 22
OTHER AUTHORITIES
Alschuler, The Prosecutor's Role in Plea Bargsin~
36 U. CHI. L. REV. SO (1966) ......ccceees see 25
Bedau, Death Sentences in New Jersey 1907-1960,
19 RUTGERS L. REV. 1 (1964)........0005- sesccccce 00
BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF
CAPRICE AND MISTAKE i TTT T TTT TTT TTT 25, 28
ive Clemency in Capital Cases, 39 N.Y.U.L.
Ds Te GE BbSGb6EGCCSSSeCCCCCCOceccoeeoeecs : 29
- vi -
—
Johnson,
Selective Factors in Capital Punishment,
36 SOCIAL FORCES 165 CRUISED cocceecovoeooeencooocees
KALVEN & ZEISEL, THE AMERICAN JURY (1966) ....-----++0+
Mackey, The Inutility of Mandatory Capital Punish-
e, 54 B.U.L. REV. 32
(1974) cc ccccccccneeeeeeeeeeeseseeesssesesessseesess
McDonald,
24 S.C. L. REV. 762 (1962) ....--0++-
MILLER, PROSECUTION: THE DECISION TO CHARGE A SUSPECT
WITH A CRIME (1969) ccccccccccccccccccsseseseesesess
MOLEY, POLITICS AND CRIMINAL PROSECUTION (1929).......+-
NATIONAL COMMITTEE ON LAW OBSERVANCE AND ENFORCEMENT,
REPORT ON PROSECUTION (2992) cccccccccccccscescocece
NEWMAN, CONVICTION: THE DETERMINATION OF GUILT OR
INNOCENCE WITHOUT TRIAL CLGSSS cccocecoesoecooecoeses
PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINIS-
TRATION OF JUSTICE, TASK FORCE REPORT: THE COURTS
(1967) 2c cc wcc nce nceceeeeeseeesersseesesssesseeseee®
21 DePAUL L. REV. 484
(1971-1972) ccc ccc ec ceeer ce eeeeseeeeseessesessesesese
REPORT OF THE ROYAL COMMISSION ON CAPITAL PUNISHMENT,
1949-1953 (1983) -cccccccccesessccccccssessecesecees
Rosett,
Shannon, The Grand Jury, True Tribunal of the People
; the Prosecutor?
Discretion, Severity and Legality in
cramanas Justice, 46 SO. CALIF. L. REV. 12
(1972 eeeeeeeeeeeeeeeee ee eewe eee eee eee eeereeeeerer eee re
or Administrative Agency of
2 NEW. MEX. L. REV. 141 (LOTS) cccccccccceceseececce
THE TWENTIETH CENTURY TASK FORCE ON CRIMINAL SENTENC-
ING, FAIR AND CERTAIN PUNISHMENT (1976) .......+-++-
UNITED STATES DEPARTMENT OF JUSTICE, SOURCEBOOK OF
CRIMINAL JUSTICE STATISTICS - 1974 (1975).....+-++-
Wolfgang, Kelly and Nolde, Comparison of the Executed
53 J. CRIM. L. CRIM. & POL. SCI. 301 (1962).......
- vii -
Page
29
26
28
25
18
16
16
15
24
17
21
18
17
22
22
30
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1975
No. 75-
ARCHIE ALLEN,
Petitioner,
THE STATE OF SOUTH CAROLINA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF SOUTH CAROLINA
Petitioner prays that a writ of certiorari issue to review
the judgment of the Supreme Court of South Carolina entered
February ll, 1976.
CITATION TO OPINION BELOW
The opinion of the Supreme Court of South Carolina is re-
ported at 222 S.E.2d 287 (1976) and is set out as Appendix A
hereto, pp. la-Sa infra.
JURISDICTION
Jurisdiction of this Court is invoked under 28 U.S.c.
§1256(3), petitioner having asserted below and asserting here
deprivation of rights secured by the Constitution of the United
States.
The time within which a petition for certiorari might be
filed was extenlted to June 10, 1976 by order of Chief Justice
Burger, dated April 19, 1976.
QUESTION PRESENTED
Does the imposition and carrying out of the sentence of
death for the crime of first degree murder under the laws of
South Carolina violate the Eighth or Fourteenth Amendment to
the Constitution of the United States?
CONSTITUTIONAL AND STATUTORY
——_—PRQVISIONS INVOLVED __
1. This case involves the Eighth and Fourteenth Amend-
ments to the Constitution of the United States.
2. This case also involves the following provisions of
South Carolina la:
S.C. Code Ann. §16-51 (1962)
Murder defined. -- “Murder” is the killing of
any person with malice aforethought, either express
or implied.
S.C. Code Ann. §16-52 (1975 Supp.)
Punishment for murder. -- Whoever is guilty of
murder under the following circumstances shall suffer
the penalty of death:
(1) Murder committed while in the commis-
sion of the following crimes or acts: (a) rape;
(b) assault with intent to ravish; (c) kidnap-
ping; (d) burglary; (e) robbery while armed with
a deadly weapon; (f) larceny with use of a deadly
weapon; ‘g) housebreaking; (h) killing by poison;
(i) lying in wait.
(2) Murder committed for hire based on
some consideration of value.
(3) Murder of a law-enforcement officer
er correctional officer while acting in the
line of duty.
(4) The person convicted of committing
the murder had previously been convicted of
murder, or was convicted of committing more
than one murder.
(S) Murder that is willful, deliberate
and premeditated.
Whoever is guilty of murder under any other cir-
cumstance shall suffer the penalty of life imprison-
ment. Provided, however, that notwithstanding the
provisions of this section, under no circumstances
shall a female who is pregnant with child be executed
so long as she is in that condition.
S.C. Code Ann. §55-373 (1962)
Capital punishment to be by electrocution. --
All persons convicted of capital crime and having
imposed upon them the sentence of death shall suffer
such penalty by electrocution within the walls of the
institution of the Department of Corrections at Columbia
under the direction of the Commissioner of the prison
system instead of by hanging.
Petitioner was jointly tried with Sam Todd in the General
Sessions Court for the Fifteenth Judicial Circuit, in and for
Horry County, South Carolina, upon an indictment which charged,
in separate counts, the capital crime of murder of a law enforce-
ment officer while in the performance of his duty and the non-
capital crime of murder with malice aforethought (T. la-2a).
Each surviving witness to the crime testified at trial. Certain
background testimony was uncontroverted. Petitioner, a 65 year
old (T. 201) white man, was deer hunting on the day of the crime
with his brother, Cleve Allen, age 53 (T. 73) and Sam Todd, age
33 (T. 147). (T. 74, 147, 202.) Each of the Allens was driving
a pickup truck; Todd was driving a car. (T. 34, 74.) All three
had been drinkine. (T. 197.) At approximately 11:00 am, Floyd
Benton and Charles McNeill, uniformed (T. 18, 77), on duty
(T. 17, 181) South Carolina game wardens had an amicable en-
counter with the three hunters. (T. 20-23, 76-78, 203.) Sub-
sequently, Sam Todd cut a cable which blocked entry to a game
management area, and he and Cleve Allen entered the area in
Cleve Allen's truck. (T. 82, 160-161.) While Sam Todd and
Cleve Allen were in the game management area, they were stopped
by wardens Benton and McNeill who gave them tickets and arranged
an appearance before the local magistrate that afternoon. (T. 3l-
32, 84-85, 150-151.) Warden Benton and Cleve Allen testified
that there was no argument or trouble at this time. (T. 32, 98);
Sam Todd testified that the four men did not “have any words at
that time“ ". . . other than Cleve asking him - Cleve tried to
pay him (Warden McNeill], arguing with him and he told him he
— <-~—
couldn't accept the money, he would have to go before the
Magistrate” (T. 150-51). Cleve Allen and Sam Todd then returned
to the entrance to the game management area and told petitioner,
who was waiting for them there, that they had been given tickets
and had to go to town to appear before the magistrate. (T. 90-
91, 151, 205-06.) Testimony as to subsequent events differed
radically.
Warden Benton testified that after giving out the two
tickets he and warden McNeill drove around for “five to seven
minutes” (T.33) and then returned to the entrance point to re-
pair the broken cable (T.37). They parked facing the Allen
trucks and the Todd car (T. 39), which were parked in a line
(T. 37) “seventy-five or eighty feet" away (T. 40). The wardens
got out of their car, McNeill on the driver's side and Benton on
the right side. (T. 37.) As he was getting out of his truck,
Benton “saw Archie Allen get out of his truck with his gun and
go around the front of his truck." (T. 37.) He “didn't know
anything was wrong or anything” (T. 38), so he “went ahead and
laid . .. fhis] coat down and laid... [his] gun on it, and
started to ope: the trunk to get the wrenches, the pliers”
(T. 39). McNeill was “a little back of" him, “about four foot
off from the car.“ (Jd.) He then heard McNeill say “'Don't
shoot me, Arch, don't shoot me,'" and saw him with his hands
outstretched. (T. 40.) Although he knew that McNeill was carry-
ing a gun that day, he did not see it in his outstretched hands.
(T. 40-41.) Warden Benton called to Cleve Allen; there was no
answer. (T. 41.) He then heard a gun go off “from the direction
where Arch was supposed to be” and saw warden McNeill fali to
a ee
the ground. (T. a~es.)” He was unable to see petitioner
(T. 41), but could see Cleve Allen and Sam Todd sitting in
Cleve Allen's truck at the time the shot was fired (T. 42).
He then heard “one of them" -~- he did not know which -- say
""there aint but one thing to do now and that's kill the last
damn one of these son-of-bitches.'" Sam Toda then went to his
car, got his gun (T. 43) and shot warden Benton, causing buck
shot wounds (T. 63) which resulted in the loss of one of his
eyes (T. 46).
Cleve Allen, testifying as a State's witness, said that when
he told his brother that he and Sam Todd had been given tickets
petitioner “grabbed his gun out of the truck and said ‘The son-
of-bitches ought to have their brains blowed out.'" (T. 91.)
Cleve Allen got out of his truck to call to the others to stop
the impending conflict and saw his brother squat down in front
of his truck. (T. 92-93.) At this point warden McNeill “pulled
out his gun.” (T. 94, 130.) Sam Todd told warden McNe.11 to
put down his gun and then shot him. (T. 94.) Cleve Allen saw
Todd fire a second time (T. 95) after which he (Allen) fled
(T. 96). At some time before the shooting Cleve Allen heard
McNeill tell petitioner to put his gun down. (T. 108.)
Sam Todd testified that when petitioner was told about the
tickets he said “'You ought to have killed the sons-of-bitches,'”
and then “Arch reached for his gun, and took his gun out of the
l/ At a pre trial hearing of a motion to sever, the Solicitor
stated, on three occasions, that it was the State's theory that
Sam Todd had shot both wardens but that the incident had been
precipitated by petitioner's words. (T. 286, 290, 291). He
noted, however, for the “benefit” of petitioner's trial counsel,
that “Floyd Benton will testify that Archie Allen in fact shot
Charles McNeill. . .." (T. 293.)
truck and when he took the gun out he shot Mr. McNeill, and I
run from his truck to my car and got my gun out of it." (T. 15L)
He admitted shooting Benton and explained prior confessions that
he had shot both wardens by testifying that “Arch told me that
if I would take it all on myself he had as much as $20,000.00
or he could getahold of that much and he would be down the next
day and get me out of jail.” (T. 155.) He explained the fact
that police had discovered, with his assistance, two empty
shells which he admitted having thrown over nearby bushes by
testifying that he had shot a deer from the same spot earlier
in the day. (T. 158, 161.) He was using number one buck shot
that day (T. 168.), and number one buck shot was taken from the
body of warden McNeill (T.213).
Petitioner's testimony was as follows:
“My connection with them was for me to go get my
gun and come down there and leave my truck there
and pay the ticket off or do something about it.
They said they didn't have nothing to pay with.
So I went to the truck. The game wardens were not
there at that time. They come up while I was going.
I had to reach in because the handle was broke. ...
All right. I reached in the truck and got my gun -
that same gun right there - and let me show you
how I had it - and I started, I took about a step
back away, stepped about on the shoulder - let me
show you how - like this. And when I looked back
Charles was on the righthand from me, on the driver's
side, and had his pistol out - all the words that
were exchanged between me and him, he says, Arch
lay your gun down. Well, I thought they had had
an argument out on the game management area and
there was trouble. Now I will show you how I had
the gun. I had the gun just like this - I thought
Charles might shoot me, and I walked back like this,
facing him around my truck. I set the gun at the
righthand front doot - the righthand door of the
truck, and I stood there. I heard a blast go off,
I didn't know who shot. When I heara that I moved a
little back. I was kind of stooped down, a little
like this. And in just a short time I heard another
shot, and I come around my truck and I got in it,
and I come on out to 501, and when I got in my
‘truck I sort of bent over so if anybody shot at me
that maybe they wouldn't hit me. I got on down the
road I straightened back up and come on to 50l, and
I was coming down here to tell the law that some-
thing was happening out there, I didn't know what it
was. I got to Wolverine Brass and I seen one of my
dogs going up the road with Sam's. I turned in be-
hind the dogs and got up then with them across the
railroad. I got across the railroad, Cleve come up
and the only thing Cleve said to me, he says, that
was bad, and he drove off. About that time Sam come
up, and he said, ole man they pulled on me and I shot
him. That's what Sam said."
(T. 206-07.) He testified that he had been carrying “double
ought" shot that day (T. 213) and, on cross examination by the
Solicitor, admitted that he had told a detective that when Sam
Todd had his gun pointed at warden McNeill, he thought he heard
Todd say “don't shoot the old man" (T. 233).
Petitioner's wife testified that she had taken a box of
“double ought" shells from his truck the day after the crime
(T. 244) and that Sam Todd had confessed to her that he had
killed both wardens (T. 246). A sister of the Allens testified
that she had overheard Sam Todd telling a detective that he had
shot both men and that “Arch and Cleve didn't have nothing to do
with it." (T. 248.)
When all sides had rested the solicitor confirmed, at the
request of the trial judge, that the indictment excluded pre-
meditated and deliberate murder and that the only capital crime
charged was murder of an officer in the course of his duty.
(T. 256-7.) The jury was instructed regarding the crimes of
capital murder of an officer, noncapital murder, and voluntary
manslaughter in the following terms:
nil
"Murder is the killing of any person with malice
aforethought, and this malice may either be express
malice or implied malice. So its the killing of any
person with malice aforethought either express malice
or implied malice. In order to convict a person of
murder, the State must not only prove the killing of
the deceased by the defendants, but that it was done
with malice aforethought, and such proof must be be-
yond a reasonable doubt. :
Malice is defined as a term of art, that is,
malice is a technical term; malice imports wicked-
ness; malice excludes any just cause of excuse for
the act; malice springs from wickedness, from de-
pravity, from a depraved spirit, from a heart which
is devoid of social duty and one which is fatally
bent on mischief. Malice may be either expressed or
implied as I have pointed out to you. These words
don't mean different kinds of malice, but the manner
in which malice may be shown to exist, that is,
either by direct evidence or by indirect evidence
or by inference. An example of expressed malice is
where there has been som2 previous threat, or some
lying in wait, or where the circumstances shown
directly that the intent to kill was entertained.
That's express malice. Malice may be implied al-
though there is no expressed intent to kill proven
by the direct evidence. It is indirectly and neces-~
sarily inferred from the facts and the circumstances
which were in fact proven by the evidence. That would
be implied malice. And under the lew malice is im-
plied or presumed from the willful, the deliberate,
the intentional doing of an unlawful act without any
just cause of excuse. In other words, generally
speaking, means the doing of a wrongful act, inten-
tionally and without any justification or excuse.
Now, even if the facts as proven are sufficient to
raise a presumption of malice, this would be rebut-
table, and its for the jury to determine from all of
the evidence whether or not malice has been proven
beyond a reasonable doubt
Malice is presumed or implied from the use of
a deadly weapon. However, where the circumstances
relating to the death of the deceased are in fact
brought out in the evidence, this presumption vanishes
and the burden is on the State to prove malice where
a deadly weapon is used by evidence which satisfies
you on the jury that malice exists beyond a reasonable
doubt.
To convict a person of murder there must be
malice aforethought, and the law doesn't require that
malice shall exist for any particular length of time
before the commission of the act, but it must be pre-
sent before the commission of the act, it must be
aforethought.
So there must be a combination of a previous
evil intent and of the act which in fact produces
the fatal results, the killing, and this must be
proven beyond a reasonable doubt. The State under
the law is not required to prove any motive, how-
ever, for the killing.
Now, having defined common law murder to you,
I will now state to you the punishment for murder
as provided by the law of this State at this time.
Section 16-52 of the Code of Laws of this
State, as Amended provides that,
“Whoever is guilty of murder under the following
circumstances shall suffer the penalty of death.”
And this statute goes on and lists five categories
of circumstances under which the death penalty is
imposed. The circumstance charged in this indict-
ment as count one is the murder of a law enforce-
ment officer while acting in the line of duty. You
on the jury will have to make a factual finding in
this case; first, whether these defendants, one or
both of them are in fact guilty of the crime of
murder, and whether it occurred under a circumstance
which now under the law of this State requires the
imposition of the death penalty. One of these cir-
cumstances is the murder of a law enforcement officer,
and he must also be acting in the line of duty during
the course of the murder.
The law provides further that whoever is guilty
of murder under any other circumstance shall suffer
the penalty of life imprisonment. So the common law
offense of murder, except for the categories set
forth in the statute now, the punishment for common
law murder is life imprisonment.
I indicated to you that the common law offense
of murder also includes the lesser crime of voluntary
manslaughter. Manslaughter, that is, voluntary man-
slaughter is the unlawful killing of another without
malice, either express or implied. So its the absence
of malice which distinguishes voluntary manslaughter
from murder. Voluntary manslaughter may be further
defined as the felonious or the wrongful taking of
the life of another intentionally without malice in
sudden heat and passion, upon sufficient legal provo-
cation. The law recognizes the fact that sudden heat
and passion may for the time being effect [sic] ones self-
control, that it may temporarily disturb the sway of
reason. And under these circumstances, the law re-
duces the crime of murder to voluntary manslaughter
- 10 -
where the killing was done in sudden heat and passion
if there was sufficient legal provocation for the
killing. Sufficient legal provocation must be such
as would be calculated to cause a man of ordinary
reason and prudence to experience sudden heat and pas-
sion and to lose control of himself temporarily.
Words alone wouldn't amount to such legal provocation
as would justify the taking of a human life. It fre-
quently involves some physical aggression or assault.
By way of illustration, if an unjustifiable assault
is made with violence on a man's person or circum-
stances of indignity and the party so assaulted kills
the aggressor, the crime would be reduced to voluntary
manslaughter if it appears that the assault was com-
mitted immediately and that the aggressor was killed
in the heat of blood, because to be voluntary man-
slaughter the killing must be in sudden heat and
passion. This crime, voluntary manslaughter, is
punishable by a prison term not exceeding thirty (30)
years nor less than two (2) years, in the discretion
of the Court.”
(T.266-70.) It was also instructed that either defendant could
be found guilty if the state had proved beyond a reasonable
doubt that he had aided, encouraged and abeted the other.
(T. 270.)
Petitioner was found guilty of capital murder (T. 283) and
sentenced to “suffer the penalty of death by electrocution"
(T. 285). Sam Todd was acquitted. (T.283.)
- il -
HOW THE FEDERAL QUESTION WAS RAISED
——_—_—___AND_DECIDED BELOW
On appeal to the Supreme Court of South Carolina, peti-
tioner raised and argued the question “whether . .. [his]
sentence of death violates the Eighth and Fourteenth Amend-
ments to the United States Constitution.” Appellant's Brief,
pp. vi, 7-40. Noting that "these issues were neither raised
before, nor ruled on by, the trial court,” the South Carolina
Supreme Court, acting pursuant to its doctrine “in favorem
vitae, considered the Appellant's arguments thereon” and in
an opinion dated February 11, 1976, found them “to be without
merit." State v. Allen, __ S.C. __, 222 S.E. 2d 287, 291.
THIS COURT SHOULD GRANT CERTIORARI TO CON-
SIDER WHETHER THE IMPOSITION Al'D CARRYING
OUT OF THE SENTENCE OF DEATH FOR THE CRIME
OF MURDER UNDER THE LAWS OF SOUTH CAROLINA
VIOLATE THE EIGHTH OR FOURTEENTH AMENDMENT
TO THE CONSTITUTION OF THE UNITED STATES.
A. Pe e
On June 29, 1972, this Court held that the death penalty
could no longer be imposed under a statutory scheme which per-
mitted its arbitrary, rare and discriminatory use. Furman v.
Georgia, 408 U.S. 238 (1972). Then existing laws of South
Carolina, whereby juries had absolute discretion to effect a
sentence of life or death in any murder case -- there was and
- 12 -
———~*
is in South Carolina only one degree of murder, defined as “the
killing of any person with malice aforethought, either express
or implied” (16 S.C. Code Ann. §51 (1962)) -- were thereby in-
validated. Atkinson v. South Carolina, 408 U.S. 936 (1972);
Fuller v. South Carolina, 408 U.S. 937 (1972); State v. Gibson,
259 S.C. 459, 192 S.E. 2d 720 (1972); State v. Bellue, 259 S.c.
487, 193 S.E.2d 121 (1972).
In the wake of Furman, the South Carolina legislature left
its definition of murder intact, but amended that provision
which had enabled juries to recommend sentences of life or
death to provide that the penalty for murder would be death if
the murder was committed during the commission of particular
crimes, committed for hire or profit, committed against a law
enforcement official in the performance of his or her duties,
committed by one who had previously been convicted of murder,
or if the murder was “willful, deliberate and premeditated."
S.C. Code Ann. §16-52 (1975 Supp.). Other murders are punish-
able by life imprisonment, ibid., and killings without malice
remain characterized as manslaughter and punishable by terms
of imprisonment ranging from two tc thirty years, unless there
is a finding that the killing was involuntary, in which case
the maximum punishment is imprisonment for three years, S.C.
Code Ann. §16-55 (1962). Petitioner and at least 22 other
i
eoteateind” wom been condemned under these newly enacted
procedures. The question presented here is whether the modi-
fications wrought by the South Carolina legislature are
sufficiently substantial to meet the minimum requirement of
Furman v. Georgia -- that the most extreme penalty known to
contemporary man not be imposed arbitrarily.
State v. Florence County Circuit Court, No. 74-GS-
H-108 March 10, 1975; State v. Dillon County Circuit
Court, No. 75-GS-17-13, March 14, 1975; State v. Ingram,
Darlington County Circuit Court, No. 75-GS-16-104, April 19,
1975; State v. Thomas, Greenville County Circuit Court, No.
75-GS-23-219, May 7, 1975S; $t v. McDowell, Horry County
Circuit Court, No. 75-GS-2?6-82, Jume 5, 1975; State v. Davis,
Florence County Circuit “Sourt, No. 75-GS-21-272, June ll, 1975;
State v. Greenville County Circuit Court, No. 75-GS-23-
861, July 23, 1975; State v. 2 2pangen, Orangeburg County Circuit
Court, No. 75-229, September .9, 1975; State v. Hall, Green-
ville County Circuit Court, Nor. 75-GS-23-1155, 75-GS-23-1156,
October 9, 1975; State v. eacehe.. Orangeburg County Circuit |
Court, No. 75-517, October 30, 75; e v. Florence
County Circuit Court, No. 75-GS-28-150, November 14, 1975;
State v. Schneider, Greenville County Circuit Court, Nos. 75-
GS-23-1908, 75-GS-23-1723, December 12, 1975; State v.
York County Circuit Court, No. 76-GS-46-80, January 28, 1976;
State v. Craven, Florence County Circuit Court, No. 76-GS-21-65,
Pebruary 23, 1976; State v. Wakefield, Greenville County Cir-
cuit Court, Nos. 76-GS-23-2183, 76-GS-23-2184, February 26,
1976; State v. Cason, Charleston County Circuit Court, No. 76-
GS-10-217, March 11, 1976; State v. Sauls, Florence County |
Circuit Court, No. 76-GS-21-349, March 25, 1976; State v.
Richland County Circuit meet t: _ a
1976; State v. Williams, Greenville County Circu °
Re. 16-GS-23-414, 76-GS-23-415, 76-GS-23-416, April 16, 1976;
State v. pooley, Sumter County Circuit Court, No. 76-GS-43-403,
May 14, 1976; v. Florence County Circuit Court,
No. 76-GS-21-472, May 28, 1976; State v. Neeley, Florence County,
Circuit Court, No. 76-GS-21-551, June 4, °
ubmission in subsecticn I-B, p. 30 , infra, draws
vs A aspects of the Furman holding than the minimum re- |
quirement stated in the text here. As this subsection I-A,
p. 30 infra, demonstrates, however, the present case presents a
capital procedure which so clearly violates the minimum require~
ment that the Court need not necessarily consider here those
broader aspects.
- 1@<-
Once this Court has determined the existence of uncon-
stitutional practices, it has heretofore invalidated subse-
quent contrivances and evasions which seek to perpetuate such
practices in new guises. Cf. Guinn v. United States, 238
U.S. 347 (1915); Lane v. Wilson, 307 U.S. 268 (1939). The
Constitution “nullifies sophisticated as well as simple-
minded modes of discrimination.” Lane v. Wilson, supra, at
27S. As will be demonstrated infra, the statutory modifica-
tions of 1974 provide “no meaningful basis for distinguishing
the few cases in which . . . [the death penalty] is imposed
from the many cases in which it is not." Furman v. Georgia,
supra, 408 U.S. at 313 (Mr. Justice White, concurring) .
Implementation of the death sentence authorized by
South Carolina law inevitably requires the exercise of a broad
range of uncontrolled selective discretion at different stages
of the criminal process by prosecuting attorneys, juries,
trial judges, and the governor in choosing which defendant will
live and which will die in cases where the death penalty is
potentially applicable. Language requires that the several
practices through which uncontrolled and arbitrary discretion
infects the administration of the death penalty under the
new law be described separately in the following sub-sections
of this brief; but they plainly operate cumulatively to
produce the kind of extreme uncertainty and unpredictability
in capital sentencing that violates Furman's ban.
-15 -
ll ala od
—_"—s bas " _ -
“There is .. . danger in treating any one stage
{of the criminal justice process] as if it were
a self-contained system rather than merely one
decision in an ongoing process of interrelated
decisions and c neces of decisions. An as-
sumption, explicit or implicit, that adjudication
is in fact a quasi-automatic nondiscretionary
process, turning solely on matters of sufficient
evidence, is a gross oversimpli fication.”
NEWMAN, CONVICTION: THE DETERMINATION OF GUILT OR INNOCENCE
WITHOUT TRIAL 150 (1966). The result of numerous interrelated
arbitrary processes in the administration of the death penalty
in South Carolina is exactly the result condemned by Furman:
death sentences which are “freakishly imposed.” Furman v.
Georgia, supra, at 310 (Mr. Justice Stewart, concurring). For,
as the following subsections demonstrate, each stage of the
process involves the exercise of discretion -- guided, in some
cases, by standards, however vague, and, in other cases,
wholly unregulated. And the exercise of that discretion
assures that execution will be a rare event, suffered only
by an unfortunate few who miss each of many clear opportunities
for a lesser disposition while others, guilty of equally serious
crimes are permitted to live.
1. Prosecutorial Charging Discretion
“The Prosecutor [is] the real arbiter of what laws shall
be enforced and against whom while the attention of the public
is drawn rather to the small percentage of offenders who go
through the courts." “‘' (Wje have to open our eyes to the
NATIONAL CO! mISSION ON LAW OBSERVANCE AND ENFORCEMENT,
REPORT ON PROSECUTION 19 (1931). C£. MOLEY, POLITICS AND
CRIMINAL PROSECUTION 48 (1929).
e 16 <
er —e
reality that justice to individual parties is administered more
outside courts than in them [through] . . . discretionary
S/
determinations by . . . prosecutors.'” The impact of prosecu-
torial discretion on the administration of criminal justice is
enormous
“Whom he chooses to prosecute, what he charges them
with, whether he charges them at all, whether he
later drops the charges or recommends a lower sen-
tence at the time of trial are all within the prose-
cutor's exercise of discretion."6/
South Carolina law places no limitation upon the solici-
tor's discretion to seek indictment and/or conviction for any
of the several crimes that might be provable against a parti-
cular defendant. See, South Carolina Constitution, Art. 5,
§20, S. C. Code Ann. §§1-223, 1-237, 1-251 and 17-1. In-
deed, in a recent capital trial the solicitor forthrightly
said in his closing argument:
“I can stand before you and take the consideration
away from you of the death penalty. That comes with-
in my job. I could stand before you right now under
the law as I have viewed it and tell you that the
State of South Carolina is not asking the death
penalty, and you could not give it to him, nor his
Honor could not give it to him."7/
State v. Allen, Florence County Circuit Court, No. 74-GS-21-100
Transcript of Proceedings, p. 665. The untrammeled freedom of
S/ = Shannon, e i e
enc’ e ? 2 NEW MEX. L. REV.
141, 170 (1972).
Note, Prosecutorial Discretion, 21 DePAUL L. REV. 484, 486
(1971-1972).
7/ This is clearly a correct interpretation of the law. State
v. Charles, » oe , 190 S.E. 466 (1937).
2 19 «
the solicitor to decline to charge, or to seek a finding re-
garding a §16-52 special circumstance will inevitably result
in an uncertain and inconsistent selection of defendants to
be prosecuted on capital charges.
Moreover, the distinctions among homicide offenses are so
hazily drawn in South Carolina that the solicitor's explicit
discretion to select among them is only vaguely informed by
legislative guidance as to the range of cases in which the death
penalty is appropriate. The haziness of the distinctions is
Gescribed here because the charging and charge modification
choices are the first of several life-death decisions to which
they lend justification. Clearly, however, the absence of
clear legislative direction enhances the danger that arbitrari-
ness and subjective judgments will infect the plea bargaining
process; judicial decisions as to the range of offenses that
may be set out for consideration by the jury; and the jury
deliberation process.
See, MILLER, PROSECUTION: THE DECISION TO CHARGE A SUSPECT
WITH A CRIME 207 (1969). C£. Rosett,
, 46 SO. CALIF. L. REV. 12, 49,
(1972):
“l{o]fficials tend to respond to the undue harshness
of punishment provided by the law by seeking discre-
tion to avoid the imposition of that harshness in
most cases. Yet, ironically, it is when the system
is particularly severe that discretion may be most
abusive and the temptation to act unjustly becomes
greater. When the system is severe, discretionary
decision-making becomes unacceptable because it re-
poses excessive authority in the hands of an often
unsupervised individual official. In sucn a situa-
tion, the advantages of legal rules and process be-
came exaggerated.”
- 18 -
° eee ee. ee
Decision as to the presence or absence of one of the cir-
cumstances described in §16-52 is, of course, precluded unless
it is determined that a murder was committed -- that the ill-
ing was “with malice aforethought.” S.C. Code Ann. §16.51l.
This concept could not be more amorphous. Malice is defined
under South Carolina law as
". . « hatred and ill-will .. . wrongful intent
to injure another person. It indicates a wicked
or depraved spirit intent on doing wrong. Malice
is a legal term implying wickedness and excludine
a just cause or excuse. The term malice indica’
a formed purpose and design to do a wrongful act
under circumstances that exclude any legal right
to do it.”
State v. Fuller, 229 S.C.439, 93 S.E.2d 463, 466 (1956).
Although malice must be “aforethought,
". . « it need not exist for any appreciable period
of time before the commission of the act intended,
it may »e conceived at the very moment the fatal
blow is given.”
State v. Judge, 208 S.C. 497, 38 S.E.24 715 (1947). And al-
though South Carolina case law indicates that malice is to be
presumed unless the killing was a response to “sufficient
provocation,” see, e.g., State v. Gardner, 219 5.c. 97, 64
S.E.2d 130, 134 (1951), the atypical exclusion of the concept
of provocation from the legislative definition of manslaughter
(quoted at p.13, supra) enhances the significance of the dif-
fuse concept of maliciousness and allows unusually vague
characterizations of the crime. Jury instructions in the
following language have, for example, been upheld by che South
Carolina Supreme Court,
“I tell you, if he did it out of a malicious heart,
sinful heart, it is murder, and the penalty is
death. You might ask yourselves, how are you to
determine upon a human heart? That is the province
of a jury every day. Just like a surgeon looks at
- 19 -
a sick man's tongue, .. . so jurymen look upon
a man‘s hands and tell what motive prompted his
heart. I tell you, if Alexander Bowers struck
this blow out of a heart full of sin and malice,
that is murder. Whether or not he had that sort
of heart, is a matter for you. If you are satis-
fied that he did have that sort of heart, render
a verdict of guilty. If you have reasonabie
doubt about it, write a verdict of not guilty of
murder. If you acquit him of murder, then your
next inquiry is, is he guilty of manslaughter?
The difference between manslaughter and murder is
like the difference between day and night. Man-
slaughter is, as I told you, where a man strikes
out of a hot heart; heart full of passion, full
of anger, and yet not full of sin. If he strikes
out of that sort of heart, the law denominates it
manslaughter, and the penalty is imprisonment for
a series of years. That is all I have to say to
you, except about the matter of reasonable doubt.”
State v. Bowers, 65 S.C. 207, 43 S.E. 656, 657 (1903). See
also the cumulative definitions given petitioner's jury,
quoted at pp. 9-11 supra.
Indeed, §16-51 is not a definition of a statutory offense
in the usual sense, but a directive that the common law defi-
nition of murder remain in force. State v. Bowers, supra, 43
S.E. at 658; State v. Wilson, 104 S.C. 351, 89 S.E. 301 (1915);
State v. Judge, supra, 38 S.E.2d at 719. A trial judge defin-
ing murder and manslaughter is thus not limited by the statu-
tory terms, but may use the common-law definitions of the
crimes. State v. Stukes, 73 S.C. 386, 53 S.E. 643, 645 (1905).
The history of the development of the common law in England
forecasts the manner in which prosecutors, as well as judges
and juries, will distinguish common law murder and manslaughter
in South Carolina in cases in which a capital disposition is
likely in the event that malice is established:
"'the loose term “malice” was used, and then when
a particular state of mind came under their notice
the Judges called it “malice” or not, according to
their view of the propriety of hanging particular
- 20 -
people.'"
REPORT OF THE ROYAL COMMISSION ON CAPITAL PUNISHMENT, 1949-1953
27 (1953), quoting STEPHEN, DIGEST OF THE CRIMINAL LAW (1877).
The murkiness of the common law concept of malice afore-
thought allows justification of a manslaughter or murder classi-
fication for virtually any homicide offense. The prosecutor
is therefore able to choose between a miximum thirty year sen-
tence and a death sentence in virtually any homicide case,
The severity of the maximum penalty for manslaughter in
South Carolina make. the prospect of a manslaughter charge
realistic in a greater number of cases than it might be in
virtually any other state. Counsel for petitioner have found
only one other state in which the penalty for manslaugher is
fixed and is equally great, 11 Del. Stat. Ann. §§632, 4204
(1974). Im Oklahoma and South Dakota maximum penalties for the
crime are not fixed; the minimum penalty is fixed at 4 years;
21 Okla. Stat. Ann. §715 (1951); 22 S.D. Comp. Laws Ann. §16-16
(1969). Compare, 14 Ala. Code Ann. §322 (1958) (1 to 10 years) ;|
ll Alaska Stat. §15.040 (1975 Supp.) (1 to 20 years); 13 Ariz.
Rev. Stat. Ann. §457 (1956) (10 year maximum); 41 Ark. Stat.
Ann. §§1504, 901 (1976) (1 to 5 years); 8 Calif. Penal Code
§193 (Wex.'s 1970) (15 year maximum); 18 Col. Rev. Stat. §§
1-104, 3~.04 (1973) (1 to 10 years); Conn. Gen. Stat. Ann.
§53-13 (1971) (15 yvear maximum); Fla. Stat. Ann. §§782.07,
775.082 (1975) (15 year maximum); 26 Ga. Code Ann.§1102 (1972)
(1 to 20 years); 38 Hawaii Rev. Stat. §748-7 (1959) (10 year
maximum); 18 Ida. Code Ann. §4007 (1975 Supp.) (10 year maxi-
mum); 38 Ill. Stat. Ann. §9-2 (1975 Supp.) (1 to 20 years);
35 Burns Ind. Stat. Ann. §13-4-2 (1975) (2 to 21 years);
35 Iowa Code Ann. §690.10 (1950) (8 year maximum); 21
Kan. Stat. Ann. §§3403, 4501 (1975) (1 to 20 years); Ky. Rev.
Stat. Ann. §§ 507.030, 532.020 (1975) (10 to 20 years); 14 La.
Stat. Ann. §31 (West's 1974) (25 year maximum); 17 Maine Rev.
Stat. Ann. §609.20 (1974) (5 to 10 years); 27 Md. Code Ann.
§387 (1971) (10 year maximum); Mass. Ann. Laws, ch. 265, §13
(1976) (20 year maximum); Mich. Comp. Laws §750.321 (1968)
(15 year maximum); Minn. Stat. Ann. §609.20 (1964) (15 year
maximum); 47 Miss. Code Ann. §97-3-25 (1972) (2 to 20 years
maximum); 38 Vernon's Mo. Stat. Ann. §559.140 (1953) (2 to 10
years); 94 Mont. Rev. Code §2508 (1969) (10 year maximum) ;
28 Neb. Rev. Stat. §403 (1965) (1 to 10 years); 16 Nev. Stat.
§200.080 (1973) (10 year maximum); N.H. Rev. Stat. Ann. §§630.2,
651.2 (1975) (15 year maximum); 2A N.J. Stat. Ann. §113-5
(1970) (10 year maximum); N.M. Stat. Ann., §§40-A-2-3(a),
40-A-1-6 (1952) (2 to 10 years); N.Y. Penal Law §§70.00, 125.20
(McKinney's 1975) (25 year maximum); N.C. Gen. Stat. §14-18
- 21 -
—
for most homicides are reasonably classifiable as killings
without malice aforethought, and surely any murder deemed to
have been committed with malice aforethought might reasonably
be classified as “willful, deliberate and premeditated" in the
YX Continued
(1971) (4 months to 20 years; 5 to 60 years for a
second manslaughter conviction; N.D. Cent. Code Ann.
§§12.1-16.02, 12.1-32.01 (1975) (10 year maximum); 29 Ohio
Rev. Code §§2903.03, 2929.11 (Page's 1975) (5 to 25 years);
Oreg. Rev. Stat. §§161.605, 163.118 (1975) (20 year maximum) ;
18 Purdon's Pa. Stat. Ann. §250.03 (1973) (10 year maximum);
R.I. Gen. Laws §11-23-3 (1969) (20 year maximum); 39 Tenn.
Code Ann. §2910 (1955) (2 to 10 years); Vernon's Tex. Stat.
Ann. Pen. Code §12.33, 19.04 (1974) (2 to 20 years); 16 Utah
Code Ann. §30-6 (1953) (1 to 10 years); 13 Vt. Stat. Ann.
§2304 (1974) (1 to 15 years); 18 Va. Code Ann. §§2-10, 2-35
(1975) (1 to 10 years); Wash. Rev. Code Ann. §9A.32.060 (1975)
(10 year maximum); W. Va. Code §61-2-4 (1966) (1 to 5 years);
45 Wis. Stat. Ann. §940.05 (1958) (10 year maximum); 6 Wyo.
Stat. Ann. §508, (1958) (20 year maximum).
The median and mean time served for homicide in the
United States between 1965 and 1970 were 58.6 months and 79.3
months, respectively. UNITED STATES DEPARTMENT OF JUSTICE,
SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1974 485 (1975).
See also, THE TWENTIETH CENTURY FUND TASK FORCE ON CRIMINAL
SENTENCING, FAIR AND CERTAIN PUNISHMENT 57 (1976) in which a
presumptive sentence of 10 years inprisonment is recommended
for the crime of “premeditated, deliberate killing”;
“Though this may seem an extremely low sentence,
even when the possible 50 percent increase for
aggravating factors is considered, it is congruent
with the average term of imprisonment actually
served by persons currently convicted of murder
in the first degree.”
10/
language of subsection 5 of §16-52. Indeed, cases such as
10/ It is for this reason that the South Carolina death
penalty statute was found unconstitutional by Judge Timmerman
in the case of State v. White:
“From the standpoint of the trained lawyer and the
experienced judge, this statute is a unique mish-
mash of contradictory terms. Since all murder is
willful, deliberate and premeditated if you find
that the evidence proves the Defendant guilty of
murder the death penalty statute as I read it under-
takes to place upon you the awesome responsibility of
deciding whether the Defendant shall suffer the penalty
of life imprisonment or the penalty of death. If the
evidence proves the Defendant guilty of murder, you
and you alone, under the statute, must decide whether
the Defendant is to live or die. Under_the statute,
you and you alone make that decision by the form of
your verdict. If your verdict reads guilty of murder
that is willful, deliberate and premeditated, the
death statute makes that verdict a verdict of death.
But, if your verdict reads guilty of murder and says
no more, then your verdict under the death statute
would reduce the penalty from death to life imprison-
ment. That presents another complication. In this
connection I charge you that the United States Supreme
Court in the case of Furman against the State of
Georgia, which was decided on June 29, 1372, held un-
constitutional the imposition of the death penalty
when the jury has the option of imposing by their
sentence either the penalty of death or the penalty
of life imprisonment and did on that same day for
that same reason vacate the judgment of the Supreme
Court of South Carolina in two murder cases insofar
as the Supreme Court of South Carolina had left un-
disturbed the death penalty imposed against Wilson
Cornelius Atkinson for murder in Charleston County
and against Louis Fuller, Jr. for murder in Abbeville
County. Following this mandate of the United States
Supreme Court, the Supreme Court of South Carolina
reversed its judgment uphclding the death penalty
and remanded each case to the Circuit Court for the
purpose of sentencing each Defendant to life impri-
sonmert under Code Section 16-52 as if the jury had
returned a verdict of guilty with a recommendation to
mercy which the state at that time provided for. The
mandate of the foregoing decisions reduces the penalty
for murder under Code Section 16052 in this State from
death to life imprisonment whenever the jury has the
option of imposing by their verdict for murder the
penalty of death or the penalty of life imprisonment.
I, therefore, hold that the South Carolina statutory
death penalty as it relates to murder as charged in
this indictment is unconstitutional and therefore
void.
@ 23
—_———
—.
petitioner's, in which the catch-all subsection 5 is not relied
upon, see p. 8, gupra, serve to highlight both the absolute
character of charging discretion and the ambiguities of the
total statutory scheme, for the life death decision literally
depended upon a determination that a homicide which did not
warrant indictment as a willful, deliberate and premeditated
killing, was committed with malice aforethought. Surely, this
linguistic distinction does not prescribe a difference upon
which human life should depend.
2. Plea Bergaining
Another point of entrance for arbitrariness in the adminis-
tration of capital punishment in South Carolina is the unfettered
power of the prosecutor to accept a plea of guilty to a lesser
offense from a capitally charged defendant. See, S.C. Code Ann.
§17-508, State v. Charles, supra, 183 S.C. 188, 190 S.E. 466
(1937). Exercise of this power undercuts the uniform and
regular imposition of the death penalty as effectively as would
the practice of consistently charging homicide defendants with
noncapital murder or manslaughter. The existence of plea bar-
gaining is pervasive in the criminal justice system: guiity
pleas are said to account for up to ninety per cent of all
Since homicide cases
criminal convictions in the nation.
are likely to take up a great deal of time in preparation and
10/ Continued
State v. White, No. , Circuit Court, Eleventh Judicial
Circuit, Judge's Charge to the Jury, July 10, 1975 (unnumbered)
pp. 7-8.
1l/ PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRA-
TION OF JUSTICE, TASK FORCE REPORT: THE COURTS 9 (1967).
ee
trial, they are particularly likely to be settled by plea
bargaining. The fact that the harshness of a “mandatory” death
sentence creates a relatively great risk that a conviction will
12/
be reversed on appeal for procedural error or that a jury will
refuse to return a first degree conviction provides additional
incentives for plea bargaining in capital cases.
“*Since time immemorial . . . [prosecutors] will
prefer to get a definite conviction, without the
tremendous expense that goes with a murder trial,
the taking of a chance that a jury may not con-
vict, or that some technical error will be made
in the heat of a trial which will result in a re-
versal by an Appellate Court.'"13/
Moreover, many prosecutors themselves
“declare without hesitation that one of their
goals in the [plea] bargaining process is to
nullify harsh, unrealistic penalties that legis-
lators have prescribed for certain crimes."14/
Indeed, the prosecutor's attitude toward plea bargaining
in the case of a capitally charged defendant is “probably the
most widely significant choice separating the doomed from those
who . . . go to prison.”
12/ “The [South Carolina] Supreme Court, for example, in every
appeal involving a capital conviction, has applied a special
presumption against “he death penalty in the form of its rule
favorem vitae. Derived from the common law it is a principle
literally in favor of life and liberty used ‘by the Court of
this State aforetimes to avert a miscarriage of justice,’ and
as a ‘haven or refuge' from ‘grave injustice’ [State v. Floyd,
174 S.C. 288, 332, 338, 177 S.E. 375 (1934)]." McDonald,
i e cE Era, 24
S.C. L. REV. 762 (1972).
13/ Bedau, DEATH SENTENCES IN NEW JERSEY, 19 RUTGERS L. REV.
1, 30 (1963) (quoting opinion of Judge C. Conrad Schneider,
State v. Paison, No. 5-550-57, Bergen Cty., Cr., Nov. 21,1958).
14/ Alschuler, e e : e in Plea Ba ni 36
U. CHI. L. REV. 50, 54 (1966).
1S5/ BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE
AND MISTAKE 43 (1974). ,
- 26 -
In the absence of any regulations which restrict a
solicitor's plea bargaining freedom in capital cases, some
defendants indicted for capital offenses may escape with sen-
tences less harsh than death as a result of plea negotiations
conducted in the unlimited discretion of the solicitor. Such
a practice may be thought necessary and proper, and it is doubt-
less inevitable, to achieve individualized and humane injustice,
but the effect is nonetheless to introduce exactly the kind of
arbitrary selectivity condemned in Furman.
3. Jury Discretion
We have discussed at pp. 17-20 supra, the effective dis-
cretion conferred by the language of §§16-51, 16-52 and 16-55
to classify homicides in accordance with the decision maker's
view of what penalty disposition is appropriate. Moreover,
there is a great likelihood that jurors deciding capital cases
will, as the major recent study of the American jury system
suggests, find the sentencing distinctions contained in §16-52
"demeaningly trivial compared to the stakes" and return
verdicts consistent only with their subjective views of the
16/ Although properly supervised plea bargaining may not
violate the Due Process Clause of the Fifth or Fourteenth Amend-
ments to the United States Constitution, see Bradly v. United
States, 397 U.S. 742, 750-755 (1970), plea bargaining practices
May nevertheless render the administration of a capital punish-
ment statute invalid under Furman v. - It should be noted
that the approval of standardless jury sentencing under the Due
Process Clause in McGautha v. California, 402 U.S. 183 (1971)
did not imply (as the subsequent decision made clear that
such a procedure complied with the Eighth Amendment.
17/ KALVEN & ZEISEL, THE AMERICAN JURY 448-449 (1966).
- 26 -
oe
appropriateness of imposition of a death penalty. Life may
thus be spared in the event of a murder conviction by the
simple device of failing to find that a §16-52 circumstance
was present.
The full verge of discretionary opportunities is ordinarily
available to a South Carolina capital jury. For, in cases
brought under §16-51, trial judges are required to charge the
offense of manslaughter unless “it .. . very clearly appear/[s]
that there is no evidence whatever tending to reduce the crime
from murder to manslaughter." State v. Norris, 253 S.c. 31,
168 S.E. 2d 564 (1969), at 565, citing State v. Gardner, 219
S.C. 97, 64 S.E.2d 130, see also, State v. Bealin, 201 S.C.490.
23, S.E.2d 746 (1943), and a conviction may be had for in-
voluntary manslaughter under an indictment for murder in the
usual form. State v. White, 475 S.E.2d 712 (1969). Moreover,
inconsistency on the part of the jury in finding a defendant
guilty only of a lesser offense is not ground for reversal.
State v. Abney, 109°S.C. 102, 95 S.E. 179 (1968); te v.
Moseley, 133 S.C. 53, 130 S.E. 123 (1925).
It is of course also possible that capital juries will
revert to the practice that prevailed in the period before
discretionary jury sentencing was permitted in capital cases
and return acquittals in those cases (based, perhaps, on some
18/ A conviction for involuntary manslaughter is appropriate
where the killing was the result of criminal negligence, de-
fined as a “reckless disregard for the safety of other”
S.C. Code Ann.§16-55.1 (1974 Supp.)
- 27 -
amorphously defined defense such as rd For, when
faced with the enormity of the decision to take life, American
juries have refused, and will always refuse, selectively and
in accordance with their sympathies and prejudices, to return
verdicts which result in mandatory death sentences. See,
McGautha v. California, 402 U.S. 183, 199 (1971) and authori-
ties cited herein, Mackey, The Inutility of Mandatory Capital
Punishment: An Historical Note, 54 B.U.L. REV. 32 (1974).
4. tive eme
The Governor of South Carolina has absolute authority to
“commute a sentence of death to that of life imprisonment,"
South Carolina Constitution, Art. 4, §14 (1974 Supp.), and
19/ The McNaughten rule remains the test for mental capacity —
to commit a crime in South Carolina. State v. Cannon, 260 S.C.
537, 197 S.E.2d 678 (1973). The amorphousness of this rule is |
widely acknowledged; indeed, “{e]very word in this rule, except |
the prepositions and definite articles, has been problematical."
BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND
— 50 (1974). See, State v. Cannon, gupra, 197 S.E.2d at
"It should be comforting to those who would attack
the McNaughten rule to realize that a layman jury,
regardless of the rule recited normally takes a
common sense approach and determines whether the
accused person is, first guilty or not guilty, and
if guilty, whether his mental condition is such that
he ought to be excused of the crime. .. ."
Section 55-641 of the South Carolina Code (1962) provides
“The Probation, Parole and Pardon Board shall consider
all petitions for . . . the commutation of a death
sentence to life imprisonment which may be referred to
it by the Governor regarding such petitions. The
Governor may or may not adopt such recommendations
but in case he does not he shall submit his reasons
for not doing so to the General Assembly. The Governor
may act on such petition without reference to the
Board.”
is required to “take care that the laws be faithfully executed
in mercy,” South Carolina Constitution, Art. 4, §12.
Although data is limited, there is evidence that, under a
system of capital punishment which does not explicitly empower
juries to spare the lives of capital offenders, the commuta-
tion power has been broadly exercised to alleviate the harsh-
ness of jury verdicts. One explanation of this phenomenon
is that in such a procedural system, the clemency authority
rather than the jury becomes the agency which compensates for
mitigating factors which, while insufficient to justify @ ver-
dict of not guilty, are nevertheless viewed by society as merit-
ing some mercy in the imposition of sentence. One study has
noted:
“In a jurisdiction which provides for the sentence
of death “n'ess the jury recommends mercy, the judge
being bound by the jury's recommendation to impose
a life sentence, the clemency authority would nor-
mally refrain from reweighing the mitigating evidence
presented at the trial. Obviously, the jury has here
had the opportunity to assess extenuating circum-
stances apart from the issue of guilt. It is the
belief of many that this function of the jury strips
the clemency authority of much of its power in capital
cases." 22/
A system which laces uncontrolled powers of commutation
in the hands of a single official is arbitrary, by definition.
It can also be demonstrated that such 4 system is likely to be
2)/ Bedau, Death Sentences in New Jersey 1907-1960, 19 RUTGERS
L. REV. 1, 10 (1964); Johnson, ive i j
Punishment, 36 SOCIAL FORCES 165, 166-167 (1957).
Note, Executive Clemency in Capital Cases, 39 N.Y.U.L. REV.
136, 165-166 (1964) (footnote omitted).
discriminatory in effect.
Since the Governor is not required to act consistently
in like cases, and since there is no way to review his ehenency
decisions for arbitrariness, there will inevitably be a “freak-
ish" sparing of some capital defendants and an equally arbi-
trary execution of other similarly situated capital defendants.
Those defendants actually executed in South Carolina will re-
main “a capriciously selected random handful.” Furman v.
Georgia, supra, st 309-310 (Mr. Justice Stewart, concurring).
B. ve the Pe t
We have argued that the laws under which petitioner was
sentenced to die fail to preclude aribitrary infliction of the
death penalty. This is so because the statutory scheme is
thoroughly flexible and because the awesome severity and
finality of the punishment of death provide strong incentive
to take advantage of that flexibility. For the reasons set
forth in Parts III of the Briefs for Petitioners in Fowler v.
North Carolina, No. 73-7031 and in Jurek v. Texas, No. 75-5394, |
petitioner urges that the question whether the statutes under
which he was convicted and sentenced are excessively cruel,
regressive and inconsistent with contemporary standards of
decency merits consideration by this Court.
23/ See Wolfgang, Kelly and Nolde, Comparison of the Executed |
the t i 53 J. CRIM. L.
CRIM. & POL. SCI. 301 (1962).
- 30 -
Petitioner
be granted
CONCLUSION
prays that the petition for a writ of certiorari
Respectfully submitted,
WMA
ROBERT L. HALLMAN, Jr.
Jenkins, Perry & Pride
924 Hampton Street
Columbia, South Carolina 29202
JACK GREENBERG
JAMES M. NABRIT, III
PEGGY C. DAVIS
DAVID E. KENDALL
10 Columbus Circle
Suite 2030
New York, New York 10019
ANTHONY G. AMSTERDAM
Stanford University Law School
Stanford, California 94305
ATTORNEYS FOR PETITIONER
-31-
The STATE. Respondent,
¥.
Archie ALLEN, Appeilant.
No. 20167.
Supreme Court of South Carolina.
Feb. 11, 1976.
Defendant was convicted before the
General Sessions Court, Horry County,
Clarence E. Singictary, J.. of murder of a
law enforcemer officer, and defendant ap-
pealed. The Supreme Court, Moss, Actiny
Associate Justice, held Lhst denial of motion
for change of venue on basis of pretr:al
publicity was not an abuse of discretion,
that denial of moiiva fur severance and
separate trials was cut an abuse of disere-
ion, that evidence wes sufficient to sustain
conviction, thal statute, whicn requires im-
position of death penaity under certain cir-
cumstances wherein one is found guilty of
murder, is sot legisiation unconstitutionauy
vesting trial court or jury with discretion in
imposing death penalty, ond that capital
finishment dees not viola {cceral consti-
tutional prohibition against cruci and un-
usual punishment or static constilutions!
prohibition against cruc!, corporal or un-
usua! punishment
Affirmed.
L. Crimina! Law o (26(2)
Denial of motion fur change of vinue
on busis of pretrisi publiciiy was not aa
abuse of discretion in prosecution for mur-
-la-
288 S.C. 222 SOUTil EASTERN REPORTER, 2d SERIES
dering a game warden where the newspa-
per and magazine articles in yucstion were
factual in nature and were not inflammato-
ry or accusztory toward defendant
2. Criminal Law o622(1), 1148
Generally, whether to grant motion for
severance and separate trials «> addressed
to diserction of trial judge, and, uriess that
discretion is abuser, his decision will not be
disturbed of apperl; such cule applics with
equal force when the motion is based on
antagonistic defenses.
3. Criminal Law o622(2)
Denia! of motion for severance and sep-
arate trisis on ground of antagonistic dec-
fenses was not an abuse of diserction in
murder prosceution in which cicfencdlant tes-
tifie? that codefendant shot two game
wardens and in which coricfendant testified
that defendant instiyated the troubdic and
shot one of the wartens.
4. Criminal Law © 955(1)
Whether to grant motion to set asice
ver * or, in alternative, grant new tria!
duc to alleged insufficiency of tne evidence
is addressed to sound diserction of (rial
court.
5. Criminal Law o925(!)
In ruling on motions to set aside ver-
dict or, in alternative, grant new trial on
basis of alleged insufficiency of the evi-
denee, trial court is concerned with the cx-
istence of evidence, not with its weight
6. Homicide » 250
Evidence, inciuding exme wartien’s tes-
timony that he heard a sccond warden ask
aceused not to shoot such warden and that
first warden subsequentiy heard a blast and
saw second warden fail, was sufficient to
sustain conviction of murier of law en-
forcement officer.
7. Nomicide 1351
Statute, which recuires imposition of
death penalty under certain circumstances
whercin one is found guilty of murter, is
not iegisiation unconstitutionally vesting
triai court or jury with diseretion im umpos-
ing death penaity. Cole 1962, 3 16-52.
8 Criminal Law © 1213
Capital punishment (ces not violate
fetiveai constitutional prohibition against
cruci and unusual punisament. Cone 1962,
§ 16-52; U.S.C.A.Const. Amends. 5, 3, Ld.
9. Criminal Law @ 1215
Capital punishment cioes not violate
state constitutionai nrumbition against cru-
el, corporal or unusual punishment. Code
1962, § 16-52; Const. art. 1. § 15.
Frankiin R DeWitt. Conway, and Mat-
thew J. Perry, Columbia, for appellant.
Atty. Gen. Daniel R. Mef.cod and Asst.
Atty. Gea. Josepa 2. Barker. Columbia, Sol.
J. M. Long, Je. and Asst. Sol. Jim Dunn,
Conway, fur respundent.
MOSS, Acting Associate Justice:
Archie Allen, the Appellant, was tried in
Horry County before the Honorabie Clar-
ence E. Singletary on the charge of murver-
ing one Charies McNeill, 2 South Carolina
Game Warien. The jury returned a verdict
of guilty of the murder of a Inw enforce-
ment officer and the Appellant was sen-
tenced, pursuant to Section 16-52 of the
1962 Code of Laws, to Jeath.
The Appeilant contends before this Court
that he is entitled to 2 reversal of bis con-
viction and a new trial. Speeificaily, he
assigns error to the conduct of the ‘rial
court iA three particulars:
(1) In refusing to grant Appellant's mo-
tion for a change of venue;
(2) In refusing to grant Appeilant’s mo-
tion for severance and separate trials, aad
(3) In refusing to grant Appellunt’s mo-
tion to sct aside the verilict or, in the alter-
native, for a new trial.
The Appellant also urges that his death
sentence must be sci aside beenuse of what
le
oe cee oe
STATE v. ALLEN S.C. 289
(Cite as 222 S.£.26 287
he perceives to be constitutional infirmities
‘ia Section 16-52
Appeilant’s arguments will be considered
in detail below. Initially, however. a re-
view of the facts is necessary to an under-
standing of the issues.
On October 3, 1974. the Appeilant, his
brother, Cleve Allen, and a friend Sam
Todd, were engaged in a deer drive in a
rural area of Horry County. At about
11:00 A.M., South Carolina Game Wardens
That afternoon, McNeill and Benton re-
turned to the same area and discovered that
a cable, which they had oreviously piaced
across the road to keep peooie out of a
nearby game management area, was down.
They observed <hat a vehicle had entered
management area and proceeded to foi-
it
=F
The
and Sam Todd. The Wardens
the
it
i
giFe
fl
git
ig!
r
iP
ef
§
t
é
Up to this point, the testimony of the
four surviving participants of this incident
was generally in agreement. Their versions
Floyd Benton testified that McNeill
stopped their car near the cable and that he
in the process of getting the tools from the
trunk of his car, he ovserved the Appellant
take his gun and walk toward the front of /
his truck. A few seconris later. Benton
heard MeNeiil say, “Don't shoot me, Arck.
don't shoot me.” Benton saw McNeill
standing a few feet away but could not, duc
to the positions of the vehicles, see the
Appellant. Looking around, Benton ob-
served Cleve Allen and Sam Todd-sitting in
Cleve's truck. He testified that he called to
Cieve in an effort to get the latter to re-
strain his brother. Benton then heard a
blast and saw McNeill fall. He testified
that the biast came from the direction in
which the Appellant was heading when
Benton had last seen him.
Benton further testified that he heard an
unidentified voice say, “well, there ain't but
one thing to do now and that's kill the last
damn one of these sons of *::ches:~ Benton
turned to find Sam Todd siming his shot
gun at him. Todd then shot Benton down,
seriously wounding him. The three men
then drove off. .
-
(1] Immediately prior to trial, Appellant
moved for a change of venue on grounds
that extensive pre-trial publicity had preju-
diced his right to a fair trial. After hearing
oral argument and reviewing some six
newspaper and magazine articles tendered
by the Appellant, Judge Singletary denied
the motion. Appeilant contends that denial
In State v. Swilling, 249 S.C. 541. 155
$.E.2d 607, this Court heid that the moving
party has the burden of showing that pro-
spective jurors have been prejudiced by pre-
trial publicity. Further, we have held that
the decision of the trial judge on motions of
this nature will not be disturbed in the
absence of a showing of abuse of dise-ction.
State v. Fuller. 227 S.C. i238, $7 S.E.24 237.
A review of the record fails to reveal that
the trial judge abused his discretion in the
instant case.
Appellant's showing in support of his mo-
was insufficient to carry his burden of
3a -
a
299 S.C. 202 SOUTH EASTERN REPORTER, 2d SERIES
establishing that prospective juror had
been prejudiced by the pre-trial publicity.
That showing, as noted above, was limited
to some six newspaper and magazine arti-
cles. None of those articles were inflam-
matory or aecusatory toward ihe Appeilant
end none appeared +o be anything out fac-
tual ia nature.
Furthermore, the irial court followed the
procedure approved of in our «decision in
State v. Crowe, 253 $.C. 238, 188 $.E2u 379.
cert. dea., 409 U.S. 1077, 93 S.C. G91, Wi
L.Ed.2d 666, in that he conducted a czereful
voir dire examination of the jurors .o deter-
mine the existence of any dias or prejudice
on their part. The record indicates, in fact,
that the trial cour. propounueu every one of
the voir dire questions requested by the
Appeilant.
The second issue raised by the Appellant
concerns the denial of his motion for sever-
ance and scparate trials. That motion,
made some two duys prior Ww trial, wus
based upon an allegation that the defenses
of the Appeilant and his cowcfendant, Sam
Todd, were antugonistic to each otner and
that the Appellant would be prejudiced if
they were tried together.
(2] Generally speaking, as noted by this
Court on numerous cccasions, the granting
or deniai of a motion for severance and
separate trials is addressed to (he discretion
of the trial judge. Uniess that discretion s
abused, his decisior wil! not be disturbed on
appeal. Siate v. Holland, 261 3.C. +85, 201
S.B.2d 118, and sce cases collected under
om 62% 1), and 62212), West's Sourh Caroiina
Digest, Criminsi Law.
The general rule applies with equal force
when, as in the instant case, the motion is
based upon antagonistic defenses. Stace v.
Britt, 235 $.C. 395, 111 S.E.2d 569.
{3} Cleariy, the trial court acted proper-
ly withia the bounds of its dwercticn. The
facts in Britt, supra, are striking!y similar.
In that case, three men were on trial for
the murder of a South Carolina Highway
Patrolman. As in the instant cose, there
was a dispute among the defendants 2s to
who fired the fatai shot. Two of the de-
fendants moved for severance and separsic
trials on the grounds of antsgonistiec de-
fenses. They boin denied having fired the
fatal shot and one, corroborated by the
third defendant, averred that she other did
“the shooting. The trial court denied the
motion and this Court affirmed citing as
authority five previous cases in which deni-
als of motions for severance based upon
antagonistic defenses had been upheld.
State v. Brown, 168 S.C. 490, 95 5.E. 61;
State v. Jeffords, 121 S.C. 443, 114 5.5. 415;
State v. Francis, 1$2 S.C. 27, 149 S.E. 3s;
State v. Atkins, 205 S.C. 450, 32 $.E.2d 372;
State v. Mathis, 174 $.C. 344, 177 3.2. Sis.
Appellant advances no reason why these
decisions are not controliing and this Court
is aware of none. There is no basis for 3
reversal on this point
The third issuc raised by the Appellant
concerns the trial court's denial of his mo
tion to set axide the verdict or, in the alier-
native, for 2 new trial. The motion was
based upon alleged insufficiency of the evi-
dence.
{4,5] The grunting or denial of such
notions is addressed to the sound discretion
of the tris! court. State v. Quiilice, 283
S.C. 87, 207 S.E.2d 814. Furthermore, ia
ruling on motions of this nature, the trial
court is concerned with the existence of
evidence—not with its weight Stute v.
Addis, 257 $.C. 482, 186 S.E.2d 415; Stace v.
Jordan, 235 3.C. 36, i177 S.E2d 46.
{6} Under the facts of the instant case,
as reviewed above, the trial court acted
properiy within its discretion in subm.tuny
the factual issues to the jury. Undeniably,
there were both direet and circumstaaual
evidence which reasonably tended to estao-
lish the Appeilant’s guilt. Indeed, the testi-
mony of Floyd Benton clone was sufficient
lo warrant sending the case to the jury.
The fourth and final issue mised by the
Appellant concerns the constitutionality of
Section 16-S2 of the: 1962 Code of Laws.
3a -
+= +,
~~ rn On ---
STATE
v. ALLEN S.C. 29]
Cite as 222 S.£.2¢ 257
The Appeliant launches three attacks on
the constitutionaiity uf this Section. fe
argues: ;
(1) That Section 16-52 ix uncnastitutional
under the United States Supreme Court
decision in Furmaz v. Coorgia, 403 US. 228,
92 S.Ct 2726. 33 LF 2546;
(2) That capita! punix iment is “cruel and
unusual punishment” and is therefore un-
constitutional per se umler the Eighth
Amendment to the United States Constitu-
tion: and
(3) That cupital punishment is “cruel,
corporal, or unusual punishment” and is
therefure unconstituGonal per se under Ar-
ticle 1, Section 15 of the South Carolina
Constitution.
Although these issues were ncither mised
before, nor ruled oa by, the wriai court, this
Court has, ia favorem vitae consielered the
Appellant's arguments thereon. Slate v.
Swilling, 249 SC. S41, 155 S.A 607, We
Fimi chem wo be without merit They will
be diseume! serizium
(7] Appellant contends that Section 16-
52 is uncunsiiiutional unter the Furman
decision because imposition of the death
penalty pursuant to that section is disere-
Gerary and therefore cruci and unusual
punishment under the Fighth Amendment
to the United States Comaiitution. He spe-
cifically aitacks the clixeretion of the jury,
the Solicitor's charzimg ciiseretion, Lae Suiic-
itor’s plea negotiat.on ciseretion, and the
Governor's iiscretion in granting or with-
hukding execuuve clemency.
The Legislature of this State, in amend.
ing Section 19 52. apparently made a con-
scious, deliberate effort Lo compiy with ihe
mandate of Furman. We Laink that effort
was successful.
Although Furman is not subject to Cecile
interpretations, ith the majority and mi-
Mority justices of ths. derision concur that
the decisiva did no more than condiema hey
station which vested the trial court or jury
with discretiun in impemay the cicath penal-
ty (See Justice Marshail’s clsent, joined by
Justices Douglas and Brennan in Schick v.
Reed, 119 US. S46, 95 SCL. S79, 42 LiFe 2d
420, and see Ue aeparste dissentiag onin-
ions, in Furman, of Chief Justice Burger,
403 U.S. 375-276, 398, 92 S.Cu 2796-2797,
2803, St LEd2t 427-428, 451; Justice
Blackmun, 40% U.S. 413, 92 S.CL 2816. 33
L.Ed2i 450; and Justice Poweil, 408 US.
415-418, 92 SCL Bl6-Bi3, 33 LE
451-453).
Section 15 52 allows no such ciiseretion to
the trial jusige ami jury. The staiute pro
vitlos curtain specific, narrow, well delineat-
ed circumstances in witirh one who is found
guilty of muricr musi suffer the penalty of
death. la compliance with Furman, re-ther
the trial judge nor jury is given any disere-
tion in the matter.
Appellant's contentions concerning the
discretion of whe Solicitors ani tne Cover-
for are clearly without merit. Furman
cannel ressena iy be rod to extend bevord
the trial jugs and jury or seyand the sen-
tencing state of the proceedings. Section
16-42 has removei the discretion con-
demaed by Furman: « \« therefore in com-
pliance with that deconn.
([S] Appellant's next conteation is that
capital punishment constitutes “crue! and
vnuscal punisament™ and is therefore un-
COMMtutional per x umier the Eighth
Amendment to the United States Comsiitu-
ton.
The <ccisions of the United Sistes Su-
preme Court lend absolutely ae support to
the Appellant's contention On the enn.
irury. proe to Furman. the Court either
expressly or implicaly upheld the constitu-
tonality of capital punishment on aumer-
ous vecasions. Wilkerson v. Utah, 99 US.
190, 25 L.Ed. 245 (1879); fm Re Kemmier.
136 US. $26. 10 S.C 940, 24 L.Bu. $19
(1890); Weems v. Unite! States, 217 US.
349, BO S.Cv. 545, 54 Lied. 793 (1910): Louie
sians ex rel. Francis +. Nexwever, 322 US.
459, GF S.Ct. 374, 91 LB. 422 (1946); Trop
v. Dulles, 256 US. 36. 78 SCL 590, 2
LEd.2l 639 (1953); Witherspoon v. [lineis,
- 4a -
Se ee
292 S.C. 222 SOUTH EASTERN REPORTER. 2d SERIES
391 US. 510, 8&3 S.Ct 1770. 20 LEd 2d 776
(1968); McGautha v. Caiiforniz, 402 US.
183, 91 S.Ct. 1454, 23 L.Edld 711 (1971).
Furthermore. as :his Court noted in State
v. Speights, 26% S.C. 127, 134, 208 S.E-tu 43,
Furman itself canno’. de read to declare
capital punishment unconstitutional per se
Under the foregring decisions and under
any constitutionally sound interpretation of
the Fifth, Eighth, and Fourteenth Amend-
* ments, it is clear that capital punishment
does not violate the prohidition against cru-
el and unusual] pusisrmeat
Appellant's final contention is that
an pocshment constitutes “cruel, cor-
poral, or unusual punishment” and is there-
fore unconstitutional per se under Art:cie |.
Sectioa 15 of the South Carolina Constitu-
tion.
This Court considered this issue on no iess
than four oceasions under Article |, Section
19, the predecessor provision of Article 1,
Section 15. On each occasion, the constitu-
tionality of capital punishment was upaeid. -
v. Crowe, 258 S.C. 258, 188 $.E.2d 379:
State», Atkinvon, 253 $C. 831, 172 S524
$.E.2d 916; and Moorer v. MacDougall, 245
S.C. 633, 142 S.E2d 46.
The Appellant relies heavily upon the
fact that the language of Article 1, Section -
15 differs from that of Article 1, Section 19.
The former provision used the words “cruei
and unusual punishment” He urges that
the specific language of Articie 1. Section ~
15 compeis the conciusion that continued
imposition of the death penalty ts ‘ncnnsist-
ent with this new provision. We lisagrce.
The reasoning upon which he foregoing
decisions were based is as directly applics-
ble to Articie 1, Section 15 as it was to
Article 1, Section 19. See Crowe, 258 5.C.
at 271, 188 S.E2d at 385. We adnere to
those decisions.
As is our custom in cases of this ature,
we have, in fsvorem vitae, carefuily exam-
imed the record for any errors affecting the
substantial rights of the accused, even
though not made a ground of appeal. We
find none. Having coucluded <hat the evi-
oe Sees Sas See
finding no errors of law in the trial, we
ponpronton terscryniy teeta gen
and sentence imposed.
Affirmed.
LEWIS, C. J.. and LITTLEJOHN, NESS
and GREGORY, JJ.. concur.
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