State v. Cooler
| Decision Date | 08 February 1889 |
| Citation | 8 S.E. 692,30 S.C. 105 |
| Parties | STATE v. COOLER. |
| Court | South Carolina Supreme Court |
Appeal from general sessions circuit court of Beauford county ALDRICH, Judge.
Indictment against Charles M. Cooler for petit larceny.
Wm. N Heyward, for appellant.
W Perry Murphy, Sol. Second circuit, for respondent.
The appellant was convicted in the court of sessions of petit larceny, alleged to have been committed on the 5th day of November, 1886, and was sentenced to imprisonment in the penitentiary, at hard labor, for the term of one year. The prosecution was commenced on the 7th of June, 1887, and the true bill was found at September term, 1887, but the trial was had at February term, 1888, after the passage of the act of 23d of December, 1887, (19 St. 819,) amending the law in respect to the punishment of the offense of petit larceny whereby it was declared that a person convicted of that offense should "be punished by imprisonment in the county jail for not more than thirty days, or by a fine of not more than one hundred dollars." After verdict, and before sentence, the defendant moved to arrest the judgment upon three grounds: (1) Because one of the jurors who rendered the verdict in this case was a member of the grand jury by which the bill was found; which fact was not known to defendant or his counsel until after the jury, charged with the trial of this case, had been impaneled. (2) Because, since the passage of the above-cited act of 1887, the court of sessions had no jurisdiction of the case. The motion in arrest of judgment having been overruled and sentence passed, as above stated, defendant appealed upon the grounds taken in arrest of judgment, and upon the further ground that the circuit judge erred in imposing a punishment in excess of that provided for by law.
The fact that one of the jurors who tried this case was also a member of the grand jury which found the bill was made to appear by the affidavits of defendant and his counsel as well as that of the juror in question; and it also appeared from the first two affidavits that this fact was not known to defendant or his counsel until after the jury were impaneled, and the evidence had been taken. But it was not made to appear by affidavit or otherwise that this fact could not have been discovered by due diligence in time to have enabled the defendant to challenge the juror for the cause stated. Waiving this, however, and assuming that the fact would not have been discovered by the use of due diligence, we do not think, under the authorities in this state, that the first ground can be sustained. There can be no doubt that the fact that a juror has served on the grand jury which found the bill furnishes a good ground for challenge; but if the objection is not taken at the proper time the accused may lose the benefit of it, as such an objection is not usually available on a motion for a new trial, (1 Bish. Crim. Proc. 1st Ed. § 773;) the general rule being universally recognized that that which was a cause of challenge to a juror shall not be made the ground for a new trial. It is true that in some of the cases elsewhere an exception to this rule has been recognized, and it has been held that where the fact constituting the cause of challenge is not known to the accused in time for him to exercise that right, and could not, by due diligence, have been discovered, especially where the objection goes to the moral capacity or impartiality of the juror, it may constitute a ground for a new trial. See an elaborate review of the cases in Hollingsworth v. Duane, Wall. Sr. 147. But an unbroken series of cases in this state, from the earliest period of our judicial history down to the present time, show that no such exception has ever been recognized here. State v. Quarrel, 2 Bay, 150; State v. O'Driscoll, Id. 153, in which the very same ground which is here taken was presented, to-wit, that one of the jurors who tried the case has served on the grand jury which found the bill, and it was overuled; State v. Fisher, 2 Nott. & McC. 261; Billis v. State, 2 McCord, 12; Josey v. Railroad Co., 12 Rich. Law, 134, in which it was held that a cause of challenge, going to the impartiality of the juror, not known to the party until after verdict, furnished no ground for a new trial; Boland v. Railroad Co., Id. 368, in which it was held that the fact that a juryman had an interest in the cause which was not known to the party in time to challenge him furnished no ground for a new trial; and, finally, Todd v. Gray, 16 S.C. 635, in which the foregoing cases were recognized and followed.
The next question is that presented by the second ground of appeal,--whether the court of sessions could take jurisdiction of this case after the passage of the act of 1887, hereinabove cited. There can be no doubt that the very purpose of that act was to invest trial justices with jurisdiction of cases of petit larceny. This court had recently decided in State v. Jenkins, 26 S.C. 121, 1 S.E. Rep. 437, that a trial justice had no jurisdiction of a case of petit larceny, because there was no law limiting the punishment of that offense to $100 fine or 30 days' imprisonment, and the manifest object of the act in so limiting the punishment of that offense was to bring it within the class of cases covered by section 19, art. 1, of the constitution, which declares that "all offenses less than felony, and in which the punishment does not exceed a fine of one hundred dollars, or imprisonment for thirty days, shall be tried summarily before a justice of the peace, or other officer authorized by law, on information, under oath, without indictment or intervention of a grand jury," etc. Now, as it has been settled by the case of State v. Fillebrown, 2 S.C. 404, recognized in State v. Jenkins, supra, that a trial justice falls under the terms "other officer authorized by law," as used in the clause of the constitution just quoted, and as the offense of petit larceny has heretofore, by section 2498 of the General Statutes, been declared a misdemeanor, which is an offense "less than felony," and as the punishment of the offense is now, by the act of 1887, limited to imprisonment in the county jail for not more than 30 days or a fine not more than $100, it follows, necessarily, that a trial justice now has jurisdiction of the offense of petit larceny.
But this is not conclusive of the present case, for two questions yet remain...
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