The opinion of the court was delivered by: Moss, Justice.
At the 1956 April term of the Court of General Sessions for Allendale County, South Carolina, the appellant, Willie Marion Daniels, was indicted under separate indictments for rape and burglary, which alleged crimes occurred on the night of February 25, 1956.
At the said term of Court, when the case was called for trial, the appellant had not retained counsel to represent him, and the Court appointed able and competent attorneys to appear and represent the appellant. The appellant, through his counsel, made a motion that he be sent to the South Carolina State Hospital for examination as to his mental soundness. The South Carolina State Hospital found no evidence of insanity and that the appellant was functioning at an intellectual level average for his age, race and educational opportunities.
At the 1956 June term of the Court of General Sessions for Allendale County, the case charging the appellant with rape was called for trial. When the rape case was called for trial, the appellant, through his counsel, advised the Court that he wished to plead guilty of the indictment charging him with burglary, which plea would have automatically carried with it a sentence of life imprisonment. However, the State refused to accept the plea in the burglary case and insisted upon the trial of the appellant upon the charge of rape. The Court was advised by counsel for the appellant that whenever he was called upon to answer the burglary indictment, that he would plead guilty to such.
The trial of the appellant for the rape of the prosecuting witness was begun and the case submitted to the jury on the afternoon of June 18, 1956, and a verdict of guilty was returned. The Court pronounced the death sentence upon the appellant and from said judgment and sentence comes this appeal.
The prosecutrix was a clerk, employed by the Southern Bell Telephone & Telegraph Company in Allendale, South Carolina. She lived in her own home on Hickory Street in said town. On Saturday night, February 25, 1956, the prosecutrix was using the telephone in her bedroom. She heard a noise and went in the hall of her home and saw the appellant entering the front door. She advised him that he was in the wrong house, and he said "No", and that he knew where he was. The appellant pulled out a gun and knife and when the prosecuting witness screamed, he choked and threatened to kill her and knocked her down in the living room. She also testified that before he knocked her down he stated that he had entered the house for the purpose of taking her money and having sexual intercourse with her. He robbed the prosecuting witness and then raped her. The prosecuting witness absolutely identified the appellant as her assailant. A physician was immediately called after the departure of the appellant and he testified that the prosecutrix. had been manhandled and that there was evidence of masculine habitat with the female organs of the prosecutrix. The appellant was arrested on February 28, 1956, and was taken to the headquarters of the South Carolina Law Enforcement Division, where he made a full and complete written confession, in which he admitted that he had come into the home of the prosecuting witness and there he had robbed and raped her. During the trial of the case the appellant admitted on direct examination that the confession he had given was correct. He also admitted that such statement was free and voluntary. Upon cross examination the record shows the following:
"Q. You came for two purposes, you came to get money and to rape her, except that you did not use the word rape?
"Q. And you did rape her?
"A. Yes sir, but not of my intention."
The evidence as to the identity and guilt of the appellant is overwhelming. In fact, the appellant, through his counsel, asserts in his brief the following:
"Of course, it was the desire and hope of the defendant that the jury would recommend mercy, and thus spare his life, since he had admitted the crime of rape and in effect pled guilty, and the question of whether or not to recommend mercy was the only matter for consideration by the jury."
At the conclusion of the main charge of the Honorable J. Henry Johnson, the presiding Judge, the jury was sent to the jury room and the trial Judge made the usual inquiry of counsel for the State and the appellant as to whether any further charge was desired. In response to this inquiry counsel for the appellant made the following request:
"May it please the Court, I realize that it is probably irrelevant but in view of the discussion that has gone on in the presence of the Jury as to burglary, I would like to request the Court to charge the Jury if he pleads guilty to ...