State v. Emory
| Decision Date | 14 January 1936 |
| Docket Number | 14206. |
| Citation | 183 S.E. 323,178 S.C. 461 |
| Parties | STATE v. EMORY. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Spartanburg County; T S. Sease and G. Dewey Oxner, Judges.
Fred Emory was convicted, with recommendation to mercy, of unlawfully shooting and killing a man, and he appeals.
Affirmed.
John C Williams, John C. Lanham, and C. C. Brown, all of Spartanburg, for appellant.
Samuel R. Watt, of Spartanburg, for the State.
This case, the State v. Fred Emory, comes to this court on appeal by the defendant following his conviction in the court of general sessions for Spartanburg county, on the charge of having, on June 7, 1935, unlawfully shot and killed a negro man by the name of Gus Bivins, at Tucapau Mills, in said county of Spartanburg. The case was brought to trial in said court before his honor, Judge G. Dewey Oxner, and a jury July 23, 1935, resulting in a verdict of guilty with a recommendation to the mercy of the court. A motion by the defendant for a new trial was denied by the presiding judge. Thereafter, September 28, 1935, the defendant made a motion for a new trial on after-discovered evidence. This motion was also refused, and, from the verdict, rulings, judgment, and sentence, and from the orders refusing a new trial, the defendant has appealed to this court. In this connection it may be stated that, Judge Oxner having left the circuit, the motion for a new trial on after-discovered evidence was argued before his honor, Judge T. S. Sease.
In his exceptions the appellant imputes no error to the trial judge in the admission of testimony or in the charge to the jury, but the exceptions impute error in refusing the motions to grant a new trial and set aside the verdict.
The first exception imputes error to his honor, Judge Oxner, in denying the defendant's motion to set aside the verdict of the jury and grant a new trial for the following reasons:
"(A) In that the verdict was dictated by passion and prejudice, it having been impossible to secure an unbiased and unprejudiced panel of jurors from the venire attending court during the week of the trial.
(B) In that his Honor erred in sending the jury out of their room to a hotel at the supper hour, a distance of several hundred yards, without the knowledge or consent of the defendant or his attorneys.
(C) In that his Honor erred in swearing as witnesses the bailiffs who attended the jury in going to and from the hotel and in having supper in the diningroom of the hotel.
(D) In that his Honor erred in permitting the Solicitor to ask leading questions in examining the bailiffs who were so sworn, and in holding that it made no difference if leading questions were asked of these court officials by the prosecuting Solicitor."
In answering the question raised under subdivision A of this exception, we deem it sufficient to state that a reading of the record fails to convince us that any showing was made before Judge Oxner or during the trial of the case which could have caused his honor to reach the conclusion that the verdict of the jury was the result of passion and prejudice, or that there was anything to convince Judge Oxner that the panel of the jurors was biased and prejudiced. Therefore his honor, Judge Oxner, properly overruled the motion on this ground.
The question raised under subdivision B of this exception presents a serious question, wherein it is contended that his honor erred "in sending the jury out of their room to a hotel at the supper hour, a distance of several hundred yards, without the knowledge or consent of the defendant or his attorneys." Great care should be exercised in all cases to protect the jurors from coming in contact with third parties, and especially is this true after the testimony is concluded, the jury charged and sent to the room for deliberation. In our opinion, it is unwise for the jury to be taken from their room of deliberation to a hotel unless there are special and necessary reasons for doing so, and then it should be done under the greatest care and protection, and should never be done without the direction of the trial judge, and should be brought to the attention of counsel representing the respective parties at the time in question. In moving before Judge Oxner for a new trial on the grounds that the jury had been permitted to go to the hotel after they had retired to the room of deliberation, counsel for the defendant presented the following affidavit made by a member of defendant's counsel:
"Personally appeared before me John C. Williams, who, after being duly sworn, deposes and says that he is one of the attorneys for the defense in the above entitled case. That he has been informed by Mr. W. B. Wilson, bailiff for the Court of General Sessions of Spartanburg County, that the said W. B. Wilson was ordered and instructed by his Honor G. Dewey Oxner, Presiding Judge, to take the jury in the above case to the Gresham Hotel for supper, after said jury had returned to their room and had deliberated on the above case for a period of approximately nine and one-half hours.
The deponent further swears that he is informed that the above took place between the hours of 7 and 8 o'clock P. M. And the deponent would further show to the Court that the Gresham Hotel is situated at a distance of approximately three or four hundred yards from the Court House and that the street between the Spartanburg County Court House and the Gresham Hotel over which the above jury was required to walk to and from said hotel was crowded with people. That persons other than members of the jury were thereby permitted to mingle with the jurors while they were deliberating on their verdict and that the jury was therefore subjected and exposed to outside influences during their trip to and from the said Gresham Hotel and while they were having supper in the public dining room of said hotel.
That the deponent would further show to the Court that the said jury was taken to and from said Gresham Hotel without the knowledge, consent or permission of the attorneys for the defendant.
John C. Williams."
As appears from the language contained in this affidavit, the essential part of the same was not based upon the personal knowledge of the affiant, but was based upon information alleged to have been acquired from one of the bailiffs who had charge of the jury at the time in question. In passing upon the motion to grant a new trial on the grounds set out in the said affidavit, the following occurred:
"The Court: Well, I think perhaps I want to swear these bailiffs; I notice one statement that I ordered the jury carried to the Gresham Hotel; I think that is in error.
Mr. Williams: Yes, sir; I dictated that in a hurry.
The Court: I directed the bailiff about seven o'clock to give the jury supper, carry the jury out to supper; and I will have to swear those bailiffs. The only question in my mind whether I had better do it now or recess; it is getting pretty late.
The Solicitor: Suppose we come back at three o'clock.
Mr. W. B. Wilson; being duly sworn testified:
Examination by the Court:
Mr. Williams: Now, your Honor, the defense objects to the Court going into an investigation of this matter, since the Supreme Court said they were not interested as to whether the outside influences were exercised; the fact that the jury was allowed to mix and mingle and be exposed to the outside influence; whether or not it was exercised, they were not interested in that point; so I am objecting, your Honor, to the Court going into an investigation.
The Court: All right, I am taking the testimony over the objection.
Q. Now, Mr. Wilson, I believe you were designated to act as one of the bailiffs in charge of the jury in this case? A. Yes, sir.
Q. And as I recall the case was given to the jury upon the conclusion of my charge about ten o'clock yesterday morning? A. Yes, sir.
Q. At the lunch time, how was the jury fed? A. You mean yesterday evening?
Q. Yesterday at lunch, in the middle of of the day? A. We fed them in the room.
Q. On my instructions? A. Yes, sir.
Q. And then did you give the jury supper late yesterday afternoon upon my instructions? A. I did.
Q. I believe in the affidavit it is stated the Court instructed you to carry the jury to supper at the Gresham Hotel; and counsel states that was inadvertently put there; I don't believe I instructed you as to any particular place? A. No, sir.
Q. I only instructed you to carry the jury out to supper? A. Yes, sir.
Q. Then what time did you carry the jury out to supper? A. It was something after seven o'clock. I didn't look exactly, something between seven and eight; it was getting dusk.
Q. Where did you carry the jury to supper? A. Gresham Hotel.
Q. And who else was in charge of the jury along with you? A. Mr. Murph.
Q. Mr. Murph? A. Yes, sir.
Q. In carrying the jury from the jury room down to the Gresham Hotel for supper, was the jury carried in a body or were they allowed to mingle with anyone? A. No, sir; I had them close bunched; close as they could walk; and I crossed the street right over here in order-this side of the street there are more people on it, generally full all the time, and I crossed on the opposite side, the same side the hotel is on.
Q. Was the jury kept in a body until they were carried in the dining room at the Hotel? A. Yes, sir; well, I marched them right on in and set them down at the table.
Q....
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