84 S.E. 778 (S.C. 1915), 9035, State v. Tidwell

• Docket Number: 9035.
• Date: 15 March 1915
• Citation: 84 S.E. 778,100 S.C. 248
• Parties: STATE v. TIDWELL.
• Court: South Carolina Supreme Court

Page 778

84 S.E. 778 (S.C. 1915)

100 S.C. 248

STATE

v.

TIDWELL.

No. 9035.

Supreme Court of South Carolina

March 15, 1915

Appeal from General Sessions Circuit Court, Greenville County; T. J. Mauldin, Judge.

George W. Tidwell was convicted of manslaughter, and he appeals. Reversed, and new trial ordered.

Defendant's seventh request was as follows:

"That while it is true that the defendant must prove that he was of unsound mind at the time of the act in question by the preponderance of the evidence, yet it is also true that upon a consideration of the entire testimony in the case, the state's as well as the defendant's, if any reasonable doubt remains in the mind of the jury as to whether or not he was sane, then the defendant is entitled to a verdict of 'not guilty.' "

Page 779

James H. Price and Townes & Earle, all of Greenville, for appellant.

Solicitor P. A. Bonham and Cothran, Dean & Cothran, all of Greenville, for the State.

GAGE, J.

Verdict below for manslaughter; judgment, imprisonment at hard labor for 12 years; bail refused; appeal here by defendant for a new trial.

[100 S.C. 252] The defendant is a man past middle life and hitherto of excellent reputation. The deceased was a young man in the prime of life, and unmarried, and of feigned chastity. The transaction arose out of the adulterous life of the deceased and the defendant's young daughter, 17 years of age, and the vengeance of the father thereabout.

The deceased resided in Greenville, had lucrative employment there in the office of a cotton mill, and had good connections. The defendant resided at Clinton and was a traveling newspaper canvasser; and his daughter lived there with him and her stepmother.

The deceased visited the girl at her Clinton home, and by her account there first wronged her in her father's house, in December, 1913. In the next month he wrote to her a letter, which contained no suggestions of wrongdoing, but, on the contrary, expressed a tender affection for the girl. In the early months of 1914 the girl fell deep into the mire of sin, and her stepmother with her. They met, by appointment, the deceased and another man at a house of prostitution kept by a negress in the city of Greenville. The father got news of the scandal, repaired to the scene, and sought an interview with the deceased, but with no satisfactory result. That interview was at a hotel on Sunday afternoon. On the Thursday following, which was the 12th of March, the defendant sought the deceased at the place of his employment, and shot him to death with a pistol. The conviction was unlawful, and there must be a new trial.

There are 50 exceptions, which were unnecessary, and much incumber the record. The defendant's counsel has grouped the 50 exceptions into 16, and the counsel for the state has stated the alleged errors under four heads. And there are really only four substantial issues, to wit: (1) Ought the

Page 780

first venire to have been quashed? [100 S.C. 253] (2) Ought the juror Rogers to have been presented to the defendant before all the 15 additional jurors had been summoned to appear and before there had elapsed a reasonable time for them to appear? (3) Was incompetent testimony allowed? And this includes: Was there improper cross-examination of the father and daughter? (4) Was the defendant's seventh and refused request a right statement of the law?

These in their order. The first issue must go against the appellant. The venire first sent out by the clerk to the sheriff directed him to serve 36 men to sit as jurors. The service was not made by a delivery into the hands of the 36 men of a subp na to appear in court; but the service was made "by mail," and that method consisted in sending the subp na in a letter to the person, and also an acknowledgment of its receipt, which acknowledgment the person was expected to sign and return by mail to the sheriff. Of the 36 men named in the venire 27 signed the acknowledgment, returned the same to the sheriff, and appeared in court to serve as jurors. As many of the 9 others as the sheriff could find were served by a delivery into their hands of the subp na to appear. One of these appeared, so that 28 men named in the venire were present in court and 8 were absent.

The sole contention is that the sheriff summoned those 27 men in an unlawful manner; that the direction of the statute to summon them, "as provided by law" (Code 1912, § 4026), means the manner prescribed by the Code of 1902 (section 2923). Granting that the sheriff ought to have followed the direction of the Code of 1902, which is not adjudged, his failure to do so was not of substance.

[100 S.C. 254] The character of the men named in the venire is not challenged; the successive methods of their selection are not questioned. These are the essential things which dedicate men to jury service. It matters little how they get notice to appear in court, so they are fit and are rightly selected. They ought to be summoned in formal manner, and all named in the venire, who can with reasonable diligence be found, ought to be summoned, and all ought to attend; but a formal...