State v. Coleman

• Decision Date: 01 March 1876
• Citation: 8 S.C. 237
• Court: South Carolina Supreme Court
• Parties: STATE v. COLEMAN.

8 S.C. 237

STATE

v.COLEMAN.

Supreme Court of South Carolina.

Mar. 1, 1876.

A prisoner under indictment for murder cannot, as a matter of right, demand that the venue shall be changed to a County not within the Circuit in which the indictment was found. To what County the venue shall be changed is a matter of discretion with the Circuit Judge.

The right of a prisoner to examine jurors upon their voir dire cannot be exercised without restraint either as to time or mode.

Where a prisoner has challenged a juror peremptorily he cannot afterwards have him recalled in order to object to him for cause.

Where it becomes known, after the jury has been empaneled, that one of the jurors had expressed an opinion in relation to the case, it is no ground for a new trial that the presiding Judge did not, of his own motion, dismiss the juror, the prisoner's counsel having declined to make a motion to that end.

That the name of the Solicitor to the bill of indictment was not signed by him is no ground for a motion in arrest of judgment.

Even assuming the law to be (and there is doubt upon the point) that the signature of the Solicitor is necessary to make the indictment valid, still it is enough if his name, with his official character, is subscribed to the bill with his sanction.

Where additional jurors are wanted, and they have been selected as directed by the Act of November 19, 1873, it is not an irregularity to summon them by a venire, and not by the Sheriff, under a mere verbal direction of the Judge.

No irregularity in any writ of venire facias, or in the drawing, summoning, returning or empaneling of the jurors, is sufficient to annul the verdict, where the objections were not made before the verdict was returned, or where the party making the objection was not injured by the irregularity.

It is no ground for a motion in arrest of judgment in an indictment for murder that the indictment charged the offense to have been committed “against the statue in such case made and provided.”

The statute declaring the definition of murder, as understood at common law, and the punishment which follows its commission, does not change it from a common law to a statutory offense.

An indictment for the murder of “A B” alleged that J C, the prisoner, “on the 13th day of April, in the year of our Lord one thousand eigh hundred and seventy-three,” at, &c., in and upon the said “A B” did make an assault, and him, the said “A B,” then and there, with a certain large stick, did strike, giving him one mortal wound, of which the said “A B” “from the said 13th day of April, in the year of our Lord 1873, until the 14th day of the same month of April, in the year of our Lord last aforesaid, did languish,”“on which said 14th day of April, in the year aforesaid, the said ‘A B’ at, &c., aforesaid, died:” Held, That the use of the letters eigh, in place of the word eight, and the omission of the word last, between the words “year” and “aforesaid” in the last averment of time, did not render the allegations of time uncertain, and was no ground for arresting the judgment.

BEFORE COOKE, J., AT ABBEVILLE, OCTOBER, 1875.

This was an indictment against Jerry Coleman for the murder of Adam Hacket.

The case had been tried before, and, upon an appeal by the prisoner, a new trial had been ordered.

The only statement of the case made at this, the second trial, which the Reporter has been able to obtain is that contained in the opinion of the Court.

The prisoner was convicted and appealed to this Court.

Thomson & Noble, for appellant.

Blythe, Solicitor, contra.

The opinion of the Court was delivered by

MOSES, C. J.

The commendable zeal of the counsel for the appellant, and a knowledge of the laudable motive which prompted him to undertake the defense of the prisoner, whose interests are so deeply involved, have induced us to give a longer consideration of the points made on the motion before us than their merits demanded.

The first ground for a new trial assigned error on the part of the presiding Judge in not granting the motion for a change of venue to some County without the Eighth Circuit. The statute in regard to a change of venue allows the presiding Judge the exercise of his discretion in granting a motion to that end. While here, upon very general affidavits as to the improbability of a fair and impartial trial in the County in which the bill was found, the Judge expressed his willingness to transfer the case for trial to any County in the circuit except Pickens, where there would be no Court at the term next fixed by law. The prisoner refused to avail himself of the indulgence thus proffered and insisted that the change should be to a County out of the circuit. The refusal on the part of the Judge has not been shown to be an improper exercise of the discretion confided to him by the statute. In the absence of all proof to the contrary, we must assume that his course was prompted by a due regard to the rights both of the prisoner and the State. It is not a privilege conferred by the Act on a party, plaintiff or defendant, and neither can claim the benefit of the provision unless he shows that he is properly entitled to it. It was never intended to give one the selection of the County to which the case may be transferred, for this would make the order depend, not on the discretion of the Court, but the will of the party submitting the motion, and would be subversive of the very end which the Legislature designed in the enactment.

We cannot perceive in what manner the right of examination of the proposed jurors on their voir dire was violated, or its exercise even abridged, as is claimed by the second ground on which a new trial is asked. On the contrary, a latitude was allowed much beyond what could be demanded either from the spirit or letter of the statute. In this particular the prisoner has certainly nothing to complain of. The right allowed to one in his condition of the examination of the juror is not to be exercised without restraint, either as to time or mode. If so, it might be prolonged to defeat a trial by the expiration of the term, and thus compel the continuance which would not be granted on a direct motion. In fact, the allowance of the examination by the counsel in the place of the Court was an indulgence. The presiding Judge must determine on the character of the questions proposed and when the examination shall cease. The questions must be pertinent, and from their nature calculated to show that the person offered is not so free from bias as to sit as an impartial juror.

We see nothing sufficient even for a doubt that the right of the prisoner to a peremptory challenge of twenty jurors was in any way infringed. Derry Watt, when called, was objected to and sat aside. No evidence, discovered on the next day, to show that he might have been challenged for cause can give the prisoner the right to have him again presented to be objected to for cause, and his number of peremptory challenges, twenty, extended to twenty-one. We do not think that any precedent can be found to sustain so anomalous a proceeding. As was said by the Court in the State vs. Wise & Johnson, (7 Rich., 416,) “the right to challenge does not draw after it the right of selection, but merely the right of exclusion.”

The objection that the presiding Judge did not of his own motion dismiss Collier Ward from the jury after it had been empaneled is not well founded. Even assuming the fact, which does not in any manner appear, that he had expressed an opinion in regard to the case, and knowledge of it had only come to the prisoner after the jury was formed, when the counsel refused to move for his removal, and the substitution of another in his place, it would have been an arbitrary and unjust exercise of power on the part of the Court to displace a juror whom the prisoner had not challenegd. The Judge went very far in deference to the counsel when he said he would allow...