Ex parte Prince
| Decision Date | 27 October 1937 |
| Docket Number | 14554. |
| Citation | 193 S.E. 429,185 S.C. 150 |
| Parties | Ex parte PRINCE. v. PRINCE et al. STATE |
| Court | South Carolina Supreme Court |
Original ex parte habeas corpus proceeding by Lewis Prince, alleging that he is unlawfully restrained in the custody of John A Martin, the Sheriff of Greenville County.
Petitioner's application for discharge denied.
C Granville Wyche, of Greenville, for petitioner.
Robert T. Ashmore and Price & Poag, all of Greenville, and Samuel R Watt, of Spartanburg, for the State.
The petitioner, Lewis Prince, was brought before this court in its original jurisdiction on a writ of habeas corpus, issued upon his verified petition and the exhibits attached thereto, in which he alleges that he is unlawfully restrained in the custody of the sheriff of Greenville county.
At the September term of the court of general sessions for Greenville county, 1937, an indictment was presented to the grand jury, and a true bill returned thereon, charging the petitioner, Lewis Prince, and Francis Drake, Otis Jamison, and George Clapp jointly in one count with common-law conspiracy. The defendants entered a plea of not guilty, following which a jury was drawn, duly impaneled and sworn, and thereafter they were duly tried. The jury found the defendants Jamison and Clapp guilty, but made no reference whatever in their verdict to the petitioner, or to the defendant Drake. Under these circumstances, the petitioner, Prince, contends that the verdict, silent as to him, is tantamount to his acquittal, and that he should, therefore, be discharged.
The trial of the case was entered upon on Wednesday, September 8, 1937. The presiding judge delivered his charge to the jury on the following Saturday afternoon, and the jury retired to deliberate on their verdict about 5:30 p. m. of that day. After deliberating several hours, they returned to the courtroom, about 10:45 o'clock p. m., and the foreman announced to the court that the jury was unable to agree upon a verdict. The court then instructed the jury upon the importance of their reaching a verdict, in the language usually employed under such circumstances; but, before they again retired to consider the case, Mr. Wyche, who represented the petitioner, requested and insistently urged the court to charge the jury that, if they could agree upon a verdict as to the guilt or innocence of any one defendant, they should write a verdict as to that defendant, even though they should have a mistrial as to the other defendants. Upon the request of Mr. Wyche the jury was excused, and he was permitted to present to the court his argument in detail on this point. Following his argument the jury returned, and was given this instruction by the court:
It was agreed in this case that the jury would be allowed to bring in a sealed verdict. After explaining the procedure thereabout, the trial judge instructed them that only if they reached a verdict as to all four defendants would the bailiff in charge permit them to disperse. They were further instructed, in the event of agreement, to report to the court Monday morning at 10 o'clock.
The jury then retired and remained in the jury room in charge of a bailiff until Sunday morning at 5:45 o'clock, when the foreman notified the bailiff that the jury had agreed upon a verdict. Upon being so informed, the bailiff permitted the members of the jury to leave the jury room, and return to their homes. The indictment upon which the verdict was indorsed had been sealed in an envelope and placed in the possession of the foreman of the jury.
On Monday morning, September 13, 1937, at 10 o'clock, upon the reconvening of court, the jury reassembled and occupied the jury box for the purpose of delivering the sealed verdict. The clerk inquired whether the jury had agreed upon a verdict, and the foreman replied that they had. The indictment, with the verdict indorsed thereon, sealed in an envelope, was handed by the foreman to the clerk, who broke the seal, removed the indictment therefrom, and published the verdict in open court: "Guilty, George W. Clapp, O. P. Jamison," under which was signed the name of the foreman of the jury.
Immediately after the publication of the verdict, upon inquiry being made by the presiding judge as to the two defendants Prince and Drake, the foreman stated that with reference to them it was a mistrial, and that as to them no verdict had been reached by the jury. Thereupon, on the Court's own motion, and under its order and direction, the jury was polled upon the question of their inability to agree upon a verdict as to the two defendants Lewis Prince and Francis Drake. The jury was likewise polled as to the defendants Clapp and Jamison.
In response to the questions propounded by the clerk to each juror as to his assent to the verdict as announced each of the jurors stated that he had not been able to reach a verdict as to the defendants, the petitioner, Lewis Prince, and Francis Drake; but each answered that he had agreed upon the verdict of guilty as to George W. Clapp and Otis Jamison. The court thereupon ordered a mistrial as to the petitioner, Lewis Prince, and Francis Drake, based upon the ground that the jury had been unable to agree on a verdict.
After the jury had been discharged, counsel for the petitioner, Prince, moved that he be discharged without day. The court overruled this motion and thereafter a bench warrant was issued under the order of the court and the petitioner was arrested by the sheriff of Greenville county, and is now held in his custody.
In this proceeding we are called upon to review the propriety of the trial judge's action in ordering a mistrial, and the issues arising therefrom.
It is agreed by counsel for the petitioner and counsel for the State that the questions raised by this habeas corpus proceeding shall be decided upon the merits.
The first question to be decided is, Was the sealed verdict as rendered by the jury, under the facts of this case, an acquittal of the defendant Lewis Prince?
The petitioner cites and relies strongly upon the case of State v. Stone, 87 S.C. 372, 69 S.E. 659, in support of the contention that the petitioner, who was not named in the verdict as having been found guilty, was, therefore, acquitted. An examination of that case, however, shows that the rule announced is not applicable here; the facts differ materially.
In State V. Stone, supra, five persons were indicted on a charge of larceny; after several hours of deliberation, the jury was instructed to return a sealed verdict, and be in court the next morning at half past 9 o'clock. When the jury reassembled on the convening of the court the following morning, they rendered a verdict finding three of the defendants guilty, with recommendation to mercy, but made no mention whatever of the other two defendants. The presiding judge, without polling the jury on his own motion, and no request having been made therefor by any of the parties, refused to discharge the two as to whom the verdict was silent. Upon appeal being taken to this court it was held that the verdict of the jury was unquestionably an acquittal of the defendants Morris Stone and Chesley Washington, these being the two defendants not named in the verdict as returned by the jury, and that they should have been discharged, and should not have been required to undergo punishment.
The doctrine announced by the court in that case undoubtedly is, that, where several defendants are indicted in the same indictment, and a verdict is rendered finding one or more guilty, without naming the others, those not named are presumed to be acquitted. It would seem that an acquittal would necessarily be implied under the circumstances suggested, nothing more appearing; but such presumption is totally destroyed when, as in the case at bar, the jury is polled after the publication of the verdict, and they all state that, while they are agreed as to the conviction of certain named defendants, they are unable to reach an agreement as to the guilt or innocence of those not actually named in the verdict.
It is urged for the petitioner that, when the jury has agreed upon a verdict, sealed it in an envelope, and then separate and mingle with the public, such verdict cannot be altered or changed except as to mere matters of form.
In the petitioner's brief are cited several cases from Georgia and from North Carolina, in support of this contention, including one from this State, but they are not in point.
We think the action of the trial judge in polling the jury is fully supported by the case ...
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