89 S.E. 643 (S.C. 1916), 9467, State v. Freely

Docket Nº9467.
Citation89 S.E. 643, 105 S.C. 243
Opinion JudgeGAGE, J.
Party NameSTATE v. FREELY.
AttorneyBonham, Watkins & Allen, Rufus Fant, Jr., and T. P. Dickson, all of Anderson, for appellant. K. P. Smith, of Anderson, for the State.
Case DateJuly 15, 1916
CourtSupreme Court of South Carolina

Page 643

89 S.E. 643 (S.C. 1916)

105 S.C. 243

STATE

v.

FREELY.

No. 9467.

Supreme Court of South Carolina

July 15, 1916

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.

GAGE, J.

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 [105 S.C. 246] 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 jury returned to the court room.

Court: Mr. Foreman, the court was informed that you knocked on the door and announced that you had not agreed on a verdict, which makes it necessary for me to inquire whether your inability to agree is due to a question of law or one of fact.

Foreman: Why, your honor, it is a question of fact.

Court: You do not need any further instruction on the law of the case?

Foreman: I don't think so, sir.

Court: Your difference being one of fact, why the court is totally unable to assist you. You may retire to your room."

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:

Page 644

"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:

Mr. Foreman, is your difference one of fact or one 'of law'?

Foreman: One of fact, your honor.

Court: Well, that being the case, under the Constitution of the state and under the rule of right, the court is absolutely powerless to be of any assistance to you at all."

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:

"Go back, Mr. Foreman and gentlemen of the jury, and make one more sincere, honest effort, as the court has suggested, for that is the only kind of effort you will put forth. You may retire."

[105 S.C. 247] 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...

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    ...However, under the unitary approach enunciated in United States v. Jannotti, 729 F.2d 213, 224 (3d Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984), and El-Gawli, the defendant only carries the burden of production on the defense. In El-Gawli, we Under our jurispruden......
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    • Federal Cases United States Courts of Appeals Court of Appeals for the Third Circuit
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    ...every reasonable possibility of prejudice." United States v. Jannotti, 729 F.2d 213, 219-20 (3d Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 The evidence at trial showed that Thomas, without permission, absconded with several truckloads of parts and equipment and st......
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103 cases
  • 868 F.2d 549 (3rd Cir. 1989), 87-5339, United States v. Marino
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Third Circuit
    • February 23, 1989
    ...However, under the unitary approach enunciated in United States v. Jannotti, 729 F.2d 213, 224 (3d Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984), and El-Gawli, the defendant only carries the burden of production on the defense. In El-Gawli, we Under our jurispruden......
  • 957 F.Supp. 647 (E.D.Pa. 1997), Crim. A. 95-435-01, United States v. Nolan-Cooper
    • United States
    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • March 11, 1997
    ...United States v. Jannotti, 673 F.2d 578 (3d Cir.), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982), 469 U.S. 880, 105 S.Ct. 243, 244, 83 L.Ed.2d 182 (1984); United States v. Voigt, 89 F.3d 1050, 1070 (3d Cir.), cert. denied, 519 U.S. 1047, 117 S.Ct. 623, 136 L.Ed.2d 546 ......
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    ...to obtain damages in excess of $10,000. McKeel v. Islamic Republic of Iran, 722 F.2d 582, 590 (9th Cir.1983), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984). This court has, however, only found that "the real effort of the complaining party is to obtain money [in exce......
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    • Federal Cases United States Courts of Appeals Court of Appeals for the Third Circuit
    • July 7, 1993
    ...every reasonable possibility of prejudice." United States v. Jannotti, 729 F.2d 213, 219-20 (3d Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 The evidence at trial showed that Thomas, without permission, absconded with several truckloads of parts and equipment and st......
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