State v. Brock

• Decision Date: 13 July 1901
• Citation: 39 S.E. 359,61 S.C. 141
• Parties: STATE v. BROCK.
• Court: South Carolina Supreme Court

39 S.E. 359

61 S.C. 141

STATE v. BROCK.

Supreme Court of South Carolina

July 13, 1901

Appeal from general sessions circuit court of Clarendon county Townsend, Judge.

John P Brock was convicted of libel, and he appeals. Reversed.

Joseph T. Rhame and Lee & Moise, for appellant.

John S Wilson and W. C. Davis, for the State.

POPE J.

Under an indictment for libel, the defendant, John P. Brock, was tried at the February, 1900, term of court of general sessions for Clarendon county. A verdict of guilty was rendered. After sentence, the defendant appealed upon several grounds. We will now pass upon these grounds in their logical order.

1. The appellant, in his second ground of appeal, alleges error as follows: "Second. Because his honor erred, it is respectfully submitted, in overruling the defendant's motion in arrest of judgment and to set aside the verdict, made upon the ground that the indictment had never been read to the defendant, nor had he ever been given the opportunity to plead to the same, and that no plea to the same had ever been made or entered, and no issue ever joined thereon; and in holding that a plea to the indictment was not essential or necessary, and that the trial and conviction of the defendant, in the absence of any plea to the indictment was legal and valid." In the agreed case for appeal the following statement is made: "At no time was the indictment ever read to the defendant, nor was no ever called upon to plead, or given the opportunity of pleading, to the same; nor was any plea to the indictment ever made by the defendant or entered; and the entire trial was had without any plea to said indictment." And by the same agreed case for appeal this language explains when and how this matter was brought to the attention of the circuit judge for the first time: "The jury returned a verdict of guilty. The judge then asked the defendant if he had anything to say why sentence should not be passed upon him. There upon the defendant submitted a motion in arrest of judgment, and to set the verdict aside on the ground that the indictment had never been read to him; that he had never been called upon to plead to the same, nor given the opportunity of doing so; that no plea had ever been made or entered; that no issue had ever been joined between the state and the prisoner; and that hence his trial and conviction were both illegal and void, and could not support a judgment. After argument, the court held that, the defendant being charged with a misdemeanor, and not with a felony, a plea to the indictment was not essential; that it was not legally necessary that the indictment should be read to the defendant, nor that he should be called upon to plead to the same, nor afforded the opportunity of doing so; and that his trial and conviction, in the absence of any plea to the indictment at all, was legal and valid; and he overruled the motion, and the defendant excepted. The sentence of the court was $50, or one day's imprisonment." Thus the appellant brings squarely before this court the right of a defendant, when indicted for a misdemeanor, on his trial therefor to be regularly arraigned, and to be required to plead to said indictment. The case for appeal shows that the defendant was personally present at his trial, and also that he was represented by Joseph T. Rhame, Esq., and Messrs. Lee & Moise, attorneys, as his counsel; that the counsel for the defendant cross-examined every witness for the state, and introduced a number of witnesses for the defense, including the defendant himself. Not only so, but that repeated requests were made in writing upon which the circuit judge was asked to charge the jury. We find in section 47 of the Criminal Statutes of this state, that "no person shall be held to answer in any court for an alleged crime or offense unless upon indictment by a grand jury, except ***," which provision is meant to carry into effect section 17 of article 1 of our present constitution. Section 54 (formerly 2641 of the General Statutes) requires that in the arraignment of persons indicted for "murder, manslaughter, burglary, arson, rape, grand larceny or forgery, shall be entitled to ***," but "that any person or persons who shall be indicted for any crime or offense other than those enumerated above, shall have the right to ***." Thus, by indirection, the Criminal Statutes of our state require arraignment for certain offenses, such as murder, manslaughter, burglary, arson, rape, grand larceny, or forgery, but do not require arraignment for any other offenses. What is an arraignment? The definition given in 2 Am. & Eng. Enc. Law, 829, is: "Arraignment is the calling of the prisoner to the bar of the court to answer to the matter charged against him." Lord Hale says, in his Pleas of the Crown (volume 2, p. 216): "An arraignment consists of three things: First, the calling of the prisoner to the bar by his name, and commanding him to hold up his right hand, which, though it may seem a trifling circumstance, yet it is of importance, for by holding up his hand, constat de persone indictati, and he owns himself of that name; second, reading the indictment to him in English, that he may understand his charge; third, demanding of him whether he be guilty or not guilty." So, therefore, when the appellant speaks in this ground of appeal of not having had the indictment read to him, he refers to the failure of the court to have him arraigned. In what cases must an arraignment be had? In volume 2 of the Encyclopædia of Pleading and Practice (at page 761) it is stated: "In a trial for a felony, and especially if capital, the arraignment has always been regarded as an essential;" citing in notes a number of authorities in support of the proposition; among others, the case of State v. Moore, 30 S.C. 69, 8 S.E. 437. Arraignment is necessary in felonies, but as to misdemeanors the work Encyclopædia of Pleading and Practice (at page 762) states, "The authorities are divided as to whether an arraignment is necessary in cases of misdemeanor." Fortunately, in our own state, in the case of State v. Moore, supra, it is held that an arraignment is not necessary in misdemeanors, thus furnishing an adjudication of the question. But, as we understand, in the practice in our state from the earliest times an arraignment was not necessary in misdemeanors. Defendants charged with misdemeanors may be tried in their absence, and this cannot be done in cases of felonies. If a defendant charged with a misdemeanor can be legally tried in his absence, what would be the necessity of an arraignment, with no prisoner to answer to his name, to have the indictment read to him, and to demand of him if he be guilty or not guilty? None whatever. Then this view disposes of the objection that the defendant was not called on to plead to the indictment. Besides, the defendant, by his conduct here, is not entitled to have himself arraigned, and to have himself called on to plead to the indictment, for he took part in his trial at every stage until after the verdict of guilty was rendered, without once demanding this so-called right of arraignment. He thereby waived any so-called right to arraignment. This ground of appeal cannot be sustained.

2. We will next consider the alleged error of the circuit judge in causing certain jurors to stand aside. The first ground of appeal presents this question, and is as follows "First. Because his honor erred, it is respectfully submitted, in holding and ruling that jurors related by blood or connected by marriage within the sixth degree to either of the parties were disqualified from sitting as jurors, and that both consanguinity and affinity within the sixth degree were grounds for legal exception under the statute; and in not holding that under the law a juror is legally disqualified only in those cases where he is related by blood to any of the parties; and that hence he erred in requiring the jurors Brailsford, McFaddin, and Carrigan to stand aside as being legally disqualified to sit as jurors in the trial then in progress." The "case" shows the following: "Upon motion of the solicitor, the jurors were placed upon their voir dire, and upon their examination the juror T. R. Brailsford testified that he was not related by blood to the defendant, nor by blood or marriage to the prosecutor, and that his relationship to the defendant consisted in his having married defendant's half-sister. The juror J. McDowell McFaddin testified that he was not related by blood or marriage to the prosecutor, and that his relationship to the defendant came about by reason of the defendant's marriage to the aunt of the said juror, who thereby became the nephew by marriage of said defendant. The juror R. J. Carrigan testified that he was not related by blood or marriage to the defendant, but was the cousin of the prosecutor. The presiding judge ruled that under the statutes these jurors were legally disqualified to sit as such; that jurors related by blood or connected by marriage within the sixth degree to either of the parties were disqualified from sitting as such; that both consanguinity and affinity within the sixth degree were grounds for legal exception under the statutes; and ordered the jurors above named to stand aside, and refused to permit them to be presented. The defendant excepted in each instance. The two first named jurors were made to stand aside before the defendant had exhausted his peremptory challenges, and the last named afterwards." This court has repeatedly held that the question of whether a juror is indifferent or not is confided, under section 2403 of the Revised Statutes of this state, to the circuit judge for his decision. The section referred to reads as follows: "The court shall, on motion of...