State v. Takis

Mr. Associate Justice Baker delivered the Majority Opinion of the Court, with Circuit Júdge Thos. S. Sease, Acting Associate Justice, filing a Dissenting Opinion concurred in by Mr. Associate Justice Fishburne. The Opinion of the Court follows : I regret that I cannot find myself in accord with the opinion of Mr. Acting Associate Justice Sease in which the conviction of the appellant is affirmed. The opinion quotes a portion of the governing law when the prosecution relies wholly upon circumstantial evidence to establish the guilt of the accused, as laid down in State v. Kimbrell, 191 S. C., 238, 4 S. E. (2d), 121, 122, but the paragraph following the quoted paragraph from said case is just as applicable and potent, and reads as follows: “Every circumstance which is relied upon by respondent as material must be brought to the test of strict proof. All of the facts proved must be consistent with each other, and, taken together, should be of a conclusive nature and tendency, producing a reasonable and moral certainty that the appellant and no one else committed the offense charged. It is not sufficient that they create a probability, though a strong one; and if, therefore, assuming all the facts to be true, which the evidence tends to establish, *143 they may yet be accounted for upon any hypothesis which does not include the guilt of appellant, then the proof fails. The reason for this is that all presumptions of law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent until he is proved to be guilty. As has often been stated, it is not sufficient to establish a probability of guilt arising from the doctrine of chances that the fact charged is likely to be true.” It is quite true that ordinarily the State, upon the trial of an accused for a homicide, does not have to show motive, but where, as in this case, the State undertook to prove motive as a part of its chain of circumstantial evidence against the accused, and without which there would have been no “corroboration of the primary fact of guilt,” then motive became most material, and the law as stated in the paragraph quoted above from the Kimbrell case is apposite. I have studied the record in this case and agree with the statement in the opinion of Mr. Justice Sease, “that measured by the circumstantial evidence rule, this testimony is insufficient to prove adultery” on the part of the deceased. In fact, in my opinion it was unfair to the memory of the deceased that the State injected in the case such flimsy circumstances in a desperate attempt to show motive on the part of the appellant. And such testimony was unfair to the appellant. While the argument of the prosecuting attorney to the jury, not having been taken stenographically, is of course, not in the record, the order of the trial Judge refusing a new trial shows that the alleged adulterous conduct on the part of the wife (the deceased) of the appellant, and an alleged Greek custom in such case, was strenuously argued to it as the motive for the homicide, and was therefore strongly relied upon by the State, as a circumstance to prove the guilt of the appellant. AVhat effect this testimony had upon the *144 verdict of the jury is known only to the members thereof; but in the light of the other circumstantial evidence in the case, I can reach no other conclusion than that it swayed the jury into rendering the verdict which it did. Without passing upon the sufficiency of the other testimony in the case to justify the trial Judge in submitting the question of the innocence or guilt of the appellant to the jury, motion for a directed verdict of not guilty not having been made, I cannot help but reach the conclusion that the appellant, even if it was unnecessary for the State to show motive on his part, was so prejudiced by the testimony which attempted to relate to the alleged adultery of the deceased (and the argument of the Solicitor thereabout), and this material (or immaterial) link in the chain of circumstances relied upon by the State to establish the appellant’s guilt, that justice demands that the appellant be granted a new trial. I of course concur in that portion of the opinion of Mr. Justice Sease in which it is held that it was not necessary for the trial Judge to charge the law of manslaughter. Mr. Associate Justice Stukes and Circuit Judge E. H. Henderson, Acting Associate Justice, concur.