State v. Anderson

• Citation: 2 S.E. 699,26 S.C. 599
• Parties: STATE v. ANDERSON.
• Decision Date: 23 June 1887
• Court: United States State Supreme Court of South Carolina

2 S.E. 699

26 S.C. 599

STATE v. ANDERSON.

Supreme Court of South Carolina

June 23, 1887

Appeal from circuit court, Edgefield county.

S McGowan Limkins, for appellant.

Mr Nelson, for the State.

SIMPSON C.J.

The appellant was indicted and tried for murder at the November term of the court of general sessions of Edgefield county 1886. He was convicted of manslaughter. In the organization of the jury, after the regular panel had been exhausted, as it was supposed, the state having objected to two, and the prisoner to fourteen, eleven having been accepted by the prisoner, in order to fill up the supposed deficiency, his honor, Judge PRESSLEY, presiding, ordered six names to be drawn from the seven-mile box, in order to have them summoned. One name was drawn out, to-wit, A. H. Smith. Just at this time the counsel of the prisoner announced to the court that the regular panel had not been exhausted, or rather, that the name of W. B. Lowry, one of the regular jurors, had not been put in the hat, or at least had not been called. On investigation it was found that this name had been in the hat, but in some way had fallen out, and was found in a spittoon. Prisoner's counsel then objected to this juror being presented, the judge overruled this objection, which was excepted to. Prisoner's counsel then objected to A. H. Smith being drawn as a juror because he was drawn from the seven-mile box before the panel was exhausted. The court ordered his name to be put aside, and then directed a drawing of 10 names from the tales-box, etc. Upon this drawing, the name of one James Pool was drawn out about the third; and, Pool answering, the prisoner accepted him, which completed his jury. His honor therefore announced that this killed the objection made in reference to Lowry, above. The jury having been impaneled, the trial proceeded; and, as stated above, the appellant was convicted of manslaughter; and, his motions in arrest of judgment and for a new trial having been overruled, he has appealed, alleging error to the judge,-- First, because of his ruling in reference to the juror Lowry; second, because the order to draw six jurors from the tales box was quashed, and a new order substituted for ten; third, because James Pool was allowed to serve without having issued a venire for his attendance; fourth, because his honor charged upon the facts; fifth, sixth, seventh, eighth , and ninth, because his honor failed to define the crime charged, and to explain the law of self-defense fully, etc.; tenth, because his honor held that threats made by the defendant after the homicide could be received and weighed by the jury; and, eleventh, because he erred in holding that it was competent to prove that bad blood existed between the defendant and the family of the deceased, instead of confining the evidence to bad blood as to the deceased.

We think that the cases of State v. Price, 10 Rich. (S. C.) 356; State v. McQuaige, 5 S.C. 431; State v. Gill, 14 S.C. 412; and State v. Dodson, 16 S.C. 460,--are conclusive of the first exception. In those cases it was held that where the prisoner completed his jury without exhausting his right of challenge, that this cured any error on the part of the judge in excluding or presenting a previous juror. This was decided upon the ground that the right of challenge was not a right to select, but to reject, (State v. Wise, 7 Rich. S.C. 413;) and, where he completes the jury before exhausting his right to challenge, this shows that he has not been deprived of this right to reject, which the law allows him, and consequently there has been no error.

Neither was there error in suspending the order to draw six jurors from the tales-box, and substituting therefor an order to draw ten, after it was discovered that the regular jurors had not been exhausted from the hat. Under the act of the legislature upon this subject, (section 2255 of General Statutes,) whenever it shall become necessary to supply any deficiency in the number of jurors, grand or petit, duly drawn, whether exhausted by challenge or otherwise, it becomes the duty of the jury commissioner, etc., under the direction of the court, to draw from the tales-box such number as may be sufficient to fill said deficiency. In this case, when the first order was given to draw six, it was supposed by his honor and all concerned that the regular panel had been exhausted, leaving a deficiency, and said order was made. Before, however, more than one name had been drawn, the mistake above was discovered, and to rectify this mistake this order was revoked; and then after the name of Lowry was drawn from the hat, or at least presented as having been in the hat, his honor gave the second order. This, it seems to us, was exactly in accordance with the act. The first order was erroneous because of the fact that the regular jurors had not been exhausted, which was the contingency necessary to resort to the tales-box. This fact was discovered before said order was executed, and...