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January 9, 1956


The opinion of the court was delivered by: Legge, Justice.

   January 9, 1956.
At the June, 1954, term of the Court of General Sessions for Marlboro County, Hamp Jones, Jr., was found guilty of the murder of his mother-in-law, Bertha Moore, and was accordingly sentenced to death. He appeals, charging error on the part of the trial judge:

1. In permitting testimony as to oral statements made by appellant, after his arrest, to the Sheriff of Marlboro County and to the Chief of Police of the City of Bennettsville;

2. In permitting the introduction in evidence of a written confession signed by appellant;

3. In permitting certain exhibits to be introduced in evidence; and

4. In failing to excuse the jury at the conclusion of his charge in order to permit counsel to express objections to the charge or request further instructions as required by the Act of February 20, 1953, XLVIII Stat. at L. 28; 1955 Code Supplement, Section 10-1210.

Bertha Moore, a Negro woman aged forty years, lived not far from appellant and his wife, and kept their small children at her home for them as they were both employed. On Monday, April 12, 1954, about 8:15 a. m., Bertha, mortally wounded, was brought to Marlboro County General Hospital by appellant and one James Dismuth; and she died about ten minutes thereafter. On the top of her skull, to the left of the mid-line, was a triangular depressed fracture, with very severe double laceration, apparently made by a blunt instrument, and being the cause of death. There was a rough, jagged wound above her left temple, and another at the corner of her left eye, apparently also made by a blunt weapon; and there were knife wounds in her left wrist, both breasts, and the lower part of her chest.

Upon being notified of her violent death, Sheriff Weatherly went forthwith to the home of Bertha Moore, a one-story frame building consisting of a kitchen or dining room and two bedrooms. In both bedrooms the bed-covering was blood-stained; in one of them blood-stains, human excrement, and a blood-stained nightdress were on the floor near the bed. Photographs of the exterior of the house and of both bedrooms, as they were found by the sheriff, were introduced in evidence by the State. Following his examination of the premises, Sheriff Weatherly had appellant and James Dismuth arrested and held for questioning.

On April 13, appellant made an oral statement to Sheriff Weatherly, the gist of which was: that about 6:30 in the morning of April 12 he and James Dismuth had gone to Bertha's house to chop some wood for her; that the door was partly open, and when they went into one of the bedrooms they found the bed "messed up" and "quite a bit of blood around"; that in the adjoining bedroom they found Bertha Moore lying on the bed and "quite a bit of blood around there"; that appellant's youngest child, who was in the room, said that a man whom he did not know had been there fighting with Bertha; that appellant sent James Dismuth to get a doctor; and that James Dismuth returned in a little while with Dismuth's brother, in the latter's automobile, and they all took Bertha to the hospital.

The substance of this statement was written out in longhand by the sheriff, but appellant did not sign it, nor does it appear that he was requested to do so. It was not offered in evidence, but the sheriff was allowed, during a recess of the trial, to refresh his memory by reading it. Before being permitted to testify concerning it, he was examined at length by the solicitor, counsel for appellant, and the trial judge, in the absence of the jury; and upon such preliminary examination testified that it had been made by appellant to him in his office freely, voluntarily and without compulsion of any kind. Appellant also, in the absence of the jury, was questioned concerning the same, and stated that the sheriff had told him that if he didn't tell the truth he would see that he got the electric chair; and also that the sheriff had asked him if he would be willing to take a lie-detector test, to which inquiry he had made no reply. The sheriff denied having mentioned the electric chair in his questioning of appellant.

Even considering appellant's statement as a confession, which it was not, for it contained no admission of guilt, the trial judge properly ruled, following this preliminary examination, that testimony concerning it was admissible, it being for the jury to determine, under proper instructions, whether or not it had been voluntarily made. State v. Livingston, 223 S.C. 1, 73 S.E.2d 850. And thereupon, the jury having been recalled and the sheriff having testified concerning the circumstances under which the statement had been made, but before testimony as to the substance of the statement was allowed, appellant was permitted to take the stand for the sole purpose of testifying on the issue of whether or not the statement had been freely and voluntarily made. We find no error here.

Between 8:00 and 9:00 o'clock in the evening of April 13, in response to a message from appellant, Sheriff Weatherly went to the jail, where appellant made another statement, following which appellant and the sheriff went to the latter's office, where appellant repeated the statement in the presence of Sheriff Weatherly and Deputy Sheriff Quick. The substance of that statement was that appellant and one Bossy Brisbane had gone to Bertha Moore's house on the night of Sunday, April 11; that they had broken in through the back door; and that appellant had held Bertha while Brisbane had struck her. Before testimony as to this oral confession was permitted, both the sheriff and appellant were examined in the absence of the jury as to whether it had been voluntarily made. The sheriff testified that it was so made. Appellant testified that he had sent for the sheriff because a colored boy, a prisoner at the jail, with whom he had been talking, had told him that he should tell the sheriff the truth about the matter; and he further testified that, although he was still afraid about what the sheriff had previously said to him concerning the electric chair, no mention of the electric chair was made on this occasion, and no force of any kind was exercised upon him. Following this preliminary examination, the trial judge, as he had done with regard to appellant's first oral statement, permitted testimony concerning this one.

On April 13 or 14, appellant also made an oral statement to Mr. Floyd Davis, Chief of Police of the city of Bennettsville, who was assisting the sheriff in his investigation, and who testified preliminarily that the statement was made in his office after he had interrogated appellant for some thirty minutes, and without threat or promise of any kind. Appellant testified that Mr. Davis had told him that he might as well tell the truth, that the sheriff would make it good for him or could make it hard for him, and that Mr. Davis would look out for him. Mr. Davis denied having made such a statement, and on the contrary testified that when appellant decided to confess appellant told him that he would have to help him, to which he had replied that he was in no position to help. The substance of appellant's statement, as testified to by Chief Davis, was as follows: that some time after midnight of April 11 he went into Bertha Moore's house and struck her with a metal fire poker; that he then went outside and waited a while, and, hearing her go into the other room, he went back into the house and hit her again; that he then left, but came back about daylight and stabbed her; and that he just didn't know why he had done it.

On Wednesday, April 14, Deputy Sheriff A.J. Quick, in company with Rural Policeman W.S. Allen, took appellant to the scene of the crime and there, at appellant's direction, found under the barn a butcher knife, a crowbar and a fire poker, which appellant stated he had put there. There was hair on the poker. They then returned to the sheriff's office, where appellant made a confession that was thereupon written out by Mr. Quick in longhand and signed by appellant and witnessed by the two officers. Next day he signed a typed verbatim transcript of it, and was given a typewritten copy, for which he signed a receipt. Before this confession was admitted in evidence, Deputy Sheriff Quick was examined, in the absence of the jury, and testified that it had been given freely and voluntarily and without coercion of any kind. Appellant was also examined in the absence of the jury, and testified that he had confessed because Mr. Quick had told him to remember what the sheriff had said about the electric chair. He said that he had not been given a chance to read the statement before signing it. He admitted receipt of the copy of it, which at the time of the trial was still in his possession. The substance of this confession was as follows:

On Monday morning, April 12, before daylight, appellant went to Bertha Moore's house and he and she talked about his wife. He grabbed a fire poker and hit her, started to leave, and then hit her again. — "pretty hard that time". Later that morning he and his brother James Edward and James Dismuth went to her house in a truck belonging to appellant's employer. Bertha was up, and "mentioned it again", so he hit her again, and then stabbed her twice with a kitchen knife, after which they left with the truck, which appellant took to his employer. Then, after having stopped for about ten minutes at the home of appellant's mother, he and Dismuth went back to Bertha's house. She was sitting up in bed, and appellant's little boy was standing on the floor, with an orange in his hand. Appellant, having sent Dismuth to tell appellant's brother to get a doctor, got a crowbar from behind the door, and hit Bertha with it. Then he ...

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