State v. Glover

July 6, 1912. The opinion of the Court was delivered by This is an appeal from the judgment of the Circuit Court, imposing the sentence of death upon the defendant, who was convicted of assault with intent to ravish.

The appellant's exceptions will be reported, and considered in their regular order.

First, Second, Third, Fourth and Fifth Exceptions. In the first place, the appellant has failed to show that there was error; and, in the second place, even if there was error, it has not been made to appear that it was prejudicial.

Sixth Exception. We do not deem it necessary to discuss the testimony in detail to show that this exception is not well founded.

Seventh Exception. It is only necessary to refer to the following charge of his Honor, the presiding Judge, to show that this exception cannot be sustained:

"Mr. Foreman and Gentlemen: At the outset I wish to say to you that it should not weigh one iota with you that the defendant did not take the stand and testify. Counsel for the defense seems to be under the impression that the solicitor commented on that fact, but I did not so understand it. He did not refer to the defendant. If you should be under the impression that he did comment on it, it should not Weigh with you. According to my judgment, he did not comment on it under the meaning of the law. If you think that he did, you should not let it weigh with you, and you should not let it weigh, that he did not go on the stand."

Eighth Exception. We are unable to discover in what respects this charge was prejudicial to the rights of the appellant.

The next question for consideration is, whether there was error on the part of his Honor, the presiding Judge, in overruling the motion for a new trial and in arrest of judgment.

The contention of the appellant, that there was no testimony to support the verdict of the jury, has already been disposed of. The contention that the act of 1909 is unconstitutional, on the ground that it is in violation of article III, section 17, of the Constitution, cannot be sustained, for the reasons stated in the case of Jellico v. Commissioners, 83 S.C. 481. The ground that said act is unconstitutional because it requires the destruction of the record in such cases, whether the defendant be convicted or acquitted, cannot be sustained, as the provisions of the statute have no application to this case, as will appear from the following statement of his Honor, the presiding Judge, in overruling this ground of the motion:

"As to the second ground, it will be necessary to state the facts as they occurred in the Court at trial. The prosecutrix and party upon whom the assault was alleged to have been committed was put upon the witness stand in open Court and in public, just as all witnesses are sworn and examined; in other words, the provisions of the act of 1909 were not resorted to or taken advantage of, hence there is no reason for passing on the constitutionality of the act, unless defendant's contention is, that if a part of the act is unconstitutional the whole act is. If this be his position and contention it cannot be sustained, for the reason that the first section of the act fixes the punishment, and that section is independent of the balance of said act and can stand alone, even if the other portion of said act be unconstitutional, about which I express no opinion, as it is not necessary in this case to do so."

The ruling of the Circuit Judge is sustained by the case of Ex parte Florence School, 43 S.C. 11, 20 S.E. 794.

The appellant has failed to show in what respects the other constitutional provisions mentioned by him have been violated.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed, and that the case be remanded to that Court for the purpose of having another day assigned for the execution of the sentence of the Court.