State v. Freely
| Decision Date | 15 July 1916 |
| Docket Number | 9467. |
| Parties | STATE v. FREELY. |
| Court | South Carolina Supreme Court |
Appeal from General Session Circuit Court of Anderson County; M. L Smith, Judge.
Doc Freely was convicted and appeals. Reversed and new trial ordered.
Bonham Watkins & Allen, Rufus Fant, Jr., and T. P. Dickson, all of Anderson, for appellant.
K. P Smith, of Anderson, for the State.
The defendant is a negro man; he was tried for the murder of a Confederate veteran named Dodd; the verdict was "guilty," and the judgment of the law was death. The homicide was committed with a blunt instrument on the head, on Saturday afternoon some time between 4 and 6 o'clock February 20, 1915, in the storeroom of the deceased on Hampton street in the city of Anderson a half mile from the courthouse. There was no eyewitness to the tragedy; all the testimony rests in circumstances. The defendant was gone from his accustomed neighborhood, two or three miles out, with Mr. Fowler, on the morning after the event, and was absent until his arrest. He was arrested near Calhoun Falls in Abbeville county on November 10, 1915; was tried February, 1916. The jury was charged and went to its room at 1:30 p. m., and returned a verdict the next day about 10 a. m. Such is a rough sketch of the whole transaction.
There are six exceptions, but the appellant has argued only three questions of law. There was full and earnest argument on the issue of fact, whether the testimony proved beyond a reasonable doubt the guilt of the accused.
1. The first issue of law is whether the court observed the direction laid down in section 4050 of the Code of Laws hereinafter quoted. The jury first retired to make up a verdict at 1:05 p. m., Tuesday. At some hour the same evening or night, the exact hour does not appear, the following episode occurred:
The court did not then explain the law anew. No more was heard from the jury until Wednesday morning, when the court was convened, and the following event happened "Next morning, when in pursuance of the instructions of the court issued to the sheriff the jury was brought into the courtroom, this then occurred:
Nevertheless, the court went on and charged the jury again, saying, inter alia:
"It is as much a juror's duty to find a verdict as it is to find a true one, if it can be done without the sacrifices of an honest conviction."
True the judge warned them against the sacrifice of a conviction or honest belief. He sent them back with this admonition:
The jury were not advised that they could not be sent back without their consent. They did not ask for instructions on the law.
In none of this was there any violation of the statute. The words of it are (except the numerals which we supply):
"When a jury, after due and thorough deliberation upon any cause return into court without having agreed upon a verdict, the court may explain * * * to them anew the law applicable to the case, and may send them out for further deliberation; but if they return a second time without having agreed upon a verdict, they shall not be sent out again without their own consent, unless they shall ask from the court some further explanation of the law."
The statute is plain. In the instant case, assuming, but not deciding, that the jury returned first after due and thorough deliberation upon the case, yet literally they did not return a second time at all; the court sent for the jury. The word used by the statute is "return," which means "to come back after an interval, to appear again." Webster. It is true that when the judge had the jury called from its room to the courtroom, the jury did literally return. But the spirit of the statute ought not to be sacrificed to verbalism. Without regard to a technical meaning of the word "return," the object of the statute was to prevent forced verdicts, and to prevent undue severity of jury service. In the first instance a jury must give the case due and thorough deliberation before they come out of the room at all to announce an inability to agree, and of such deliberation of course the court must wisely judge. After the first return of the jury under such circumstances, the court had an undisputed right to send them out for further deliberation. At the second return of the jury, without having agreed upon a verdict, they might have asked for further explanation of the law, in which event the court might have again sent them out. That will not be questioned. And at the second return without having agreed upon a verdict, they might be sent out again by their own consent. That will not be disputed.
So the question is, did it appear to the judge, under all the circumstances there presented, that the jury consented to return the third time? Plainly if the jury had said: --the duty would have been imperative upon the judge to discharge them. If the same thing had been manifest from all the circumstances, the same imperative duty would have operated. If the circumstances satisfied the judge, in a wise exercise of his discretion, that the jury consented to the return, then it was lawful to return them. The exercise of such a discretion at so delicate stage of a trial ought not to be disturbed unless it was obviously wrongly exercised.
The appellant refers to the Kelley Case, in 45 S.C. 659, 24 S.E 45, to sustain his contention. Facts make a case, and the facts of that case have no likeness to those of the case at bar. A judge may not violate...
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