State v. Bilton

• Decision Date: 07 May 1930
• Docket Number: 12913.
• Parties: STATE v. BILTON.
• Court: South Carolina Supreme Court

153 S.E. 269

156 S.C. 324

STATE v. BILTON.

No. 12913.

Supreme Court of South Carolina

May 7, 1930

Appeal from General Sessions Circuit Court of Dorchester County; Wm H. Grimball, Judge.

Criminal prosecution by the State against J. J. Bilton. From part of order refusing to sustain defendant's plea of autrefois acquit, defendant appeals, and, from part of order sustaining defendant's plea of former jeopardy, the State appeals.

Affirmed.

The following is a statement made in open court by his honor, M L. Bonham, presiding judge, after the discharge of the jury:

"After hearing the arguments in the case and after the charge of the court the indictment in this case was delivered to the foreman of the jury. Some time in the afternoon of the same day the jury was called in and were asked if they had reached a verdict. They had not and the court sent the jury back into the room for further deliberation. I am not entirely clear in my mind just when it was brought to the attention of the court by the foreman of the jury that the indictment in the case had mysteriously disappeared.

"That evening, I think shortly after 9 o'clock, I came to the court room. I brought the jury out again. I was informed by the foreman that they had not agreed; however, the foreman said that there was a remote possibility of their reaching an agreement. There was another member of the jury--I do not recall his name, but he sat behind the foreman--who thought that there was some prospect of an agreement. I sent them back.

"However, before they went back into the jury room the matter of the disappearance of the indictment had come up and was discussed pro and con. I recall that the sheriff made the statement that there was a mass of papers in the jury room and that the indictment in the case had probably been misplaced among them. At that time the solicitor, with M. S. Connor, representing the defendant, agreed that a paper be substituted for the indictment, upon which the jury could write their verdict, and it was agreed that the same paper upon which the foreman had communicated to the court the disappearance of the indictment be used and substituted for the indictment. This was done.

"After waiting for some time I went to my boarding house. This morning, before I came to court, I was informed that the indictment had been found, in a mutilated condition. I purposely came to court ten minutes earlier. I found, upon arriving at the court, that the indictment had been found in the yard, in a very mutilated condition. Using the language of the foreman of the jury I felt that there was something mysterious about the entire matter and about the disappearance of the indictment. I felt that there was something wrong about the atmosphere of the jury. I felt that, in justice to the state and to the defendant, that it was my duty to withdraw the case from the jury and order a mistrial. I therefore called the jury into the court room and discharged them and ordered a mistrial in the case.

"Shortly thereafter--I do not recall the exact time--I was informed by the sheriff, or the clerk of court, that the jury had agreed upon a verdict. At that time I was handed the paper which the solicitor and the attorneys for the defendant had agreed to substitute for the original indictment and I found upon that paper the words "not guilty" signed by the foreman. However, I had already ordered a mistrial in the case and some time later I was handed a statement purported to have been made by the members of the jury in the case. I informed them at that time that I would be glad to hear from them as individuals but not as jurors as they had been discharged ."

A. J. Hydrick, Sol., of Orangeburg, and R. Lon Weeks, of St. George, for the State.

Wm. C. Wolfe, of Orangeburg, and M. S. Connor, of St. George, for defendant.

BLEASE J.

The defendant, J. J. Bilton, upon being called to the bar in the court of general sessions for Dorchester county, at the March, 1929, term, to be tried for the murder of George Kizer, withdrew temporarily his former plea of not guilty and interposed two pleas in bar, one of autrefois acquit and the other of "former jeopardy." The state, by its solicitor, demurred to the pleas of the defendant. The presiding judge, Hon. William H. Grimball, sustained the demurrer as to the plea of autrefois acquit; but refused it as to the plea of former jeopardy, which resulted in the discharge of the defendant.

The defendant has appealed from the refusal to sustain his plea of autrefois acquit. The state has appealed from the ruling in favor of the defendant as to former jeopardy. Both appeals were heard together in this court, and will be so decided. It is unnecessary to recite in detail the four exceptions on the part of the state and the one exception of the defendant. The questions necessary for the determination of the appeals, however, will be passed upon.

The pleas in bar were based on a former trial of the defendant in the court of general sessions for Dorchester county, at the October, 1928, term, before Hon. M. L. Bonham, presiding judge, and a jury, on the identical indictment, charging the defendant with the murder of Kizer.

Certain occurrences in the trial before Judge Bonham, necessary for an understanding of the pleas in bar, were as follows: The trial was commenced on October 16, 1928. On the 17th, the jury was charged by the presiding judge and at 12:45 p. m. retired to consider their verdict. The court recessed until 3 p. m. of that day. In the afternoon, about 4 o'clock, the jury was called into the courtroom and was asked if a verdict had been reached. Upon responding in the negative, but indicating that one might be reached, they were sent back for further deliberation. About 9 o'clock in the night of the same day, while the jury was still deliberating, one of the court bailiffs informed the presiding judge that the foreman desired to communicate with him. The jury was brought into the courtroom. The foreman of the jury presented a folded sheet of paper to the court. Judge Bonham, upon receiving this paper, read it in open court, and the writing was as follows: " Your Honor, the indictment has mysteriously disappeared from the table. Respectfully, Wm. Ahrens, Foreman. " It was suggested that perhaps the indictment could be found in the jury room, as there were quite a number of papers in that room, and likely the indictment had been commingled with these papers. The solicitor stated that the misplacement of the indictment should not prevent the returning of a verdict, and that the court could authorize the jury to return its verdict on some other paper. The defendant and one of his counsel were present at this time, and his counsel assented to the suggestion of the solicitor. Thereupon the solicitor took the sheet of paper used by the foreman in his communication to the court, and wrote thereon the usual indorsements on an indictment for murder. This paper, substituted for the indictment, was handed to the foreman, and the jury retired to their room for further deliberation.

On the following morning, a part of the indictment, alleged to have been found in the courthouse yard, was presented to the judge, and later the other part of the paper, found in the same yard, was also delivered to him. Soon after the convening of the court, Judge Bonham had the jury brought in and ordered a mistrial. He did not inquire if a verdict had been reached, and at the time gave no reasons for declaring a mistrial.

The following entry was made on the minutes of the court by the clerk: "October 16, 1928. The State v. J. J. Bilton. Indicted for murder. His Honor, Judge M. L. Bonham charged the Jury at 12:45 P. M., and the Court adjourned until 3 P. M. In this case the Jury could not agree and his Honor ordered a Mistrial." (Italics ours.)

On the 18th, after the jury had been discharged, Judge Bonham had placed on record, as he stated, "What I said and what I did this morning."

A little later, the defendant moved that the court rescind its order declaring a mistrial in the case, and that the verdict of the jury of "not guilty," alleged to have been agreed upon before the jury was discharged, be received and entered on the minutes of the court. In that connection, a statement, signed by all twelve of the jurors, was presented to the court. In brief, this paper alleged that, in all likelihood, the disappearance of the indictment from the custody of the jury was entirely accidental, as it perhaps had been dropped by one of the jurors from the window of their room, or had been blown therefrom by the wind. It was further set forth that the deliberations of the jury had been peaceful and harmonious; that during the night, the jury had finally agreed upon a verdict of "not guilty," which had been written on the substituted paper and signed by the foreman, but the jury did not care to disturb the presiding judge at that unseasonable hour; that early on the following morning, it was necessary for the foreman to retire to the toilet in the courthouse yard, and on this journey he was accompanied by one of the bailiffs in charge of the jury, and while in the yard a part of the indictment was found, which he brought back to the jury room with him; that, when the jury was again brought to the courtroom, discharged from further consideration of the case, and a mistrial ordered, no opportunity was given to announce the verdict, which had been agreed upon, and, if this opportunity had been permitted, a verdict of acquittal would have been rendered. The substituted paper with the words "Not guilty," signed by the foreman, was submitted to the court with the statement of the jury.

The motion of the defendant was overruled, and thereafter the presiding...