State v. Gill

• Decision Date: 10 January 1881
• Docket Number: CASE 961.
• Parties: STATE v. GILL.
• Court: South Carolina Supreme Court

14 S.C. 410

STATE v. GILL.

CASE No. 961.

Supreme Court of South Carolina.

January 10, 1881

1. Objection by a prisoner that jurors were improperly excused by the Circuit judge, comes too late after verdict, unless it appears that defendant was injured thereby.

2. The Circuit judge excused two jurors, one of whom, summoned under the general venire , lived at a distance from the court-house, and in his stead was called a juror from that vicinity; but the prisoner, afterwards put upon his trial for murder committed at the court-house, did not exhaust his peremptory challenges. Held , that there was no ground for arresting the judgment.

3. In a trial for murder, A was not permitted to repeat declarations made by deceased, a short time before his death, which deceased prefaced with the words " If I die." B, a brother of deceased, afterwards testified that deceased, a few moments before his death, when fully aware of his condition, made a statement, charging the prisoner with cutting him, and that A was then present. Held that the Circuit judge did not err in permitting this declaration of deceased to go to the jury.

4. Dying declarations, to be admissible in evidence, need not be, in any case, reduced to writing.

5. The jury before agreeing upon a verdict in a capital case returned into court and inquired of the presiding judge whether they could, upon conviction, recommend the defendant to mercy; to which inquiry he replied affirmatively. Held , that the judge committed no error in this, or in failing then to instruct the jury that such recommendation could not affect the sentence.

Before PRESSLEY, J., Hampton, June, 1880.

The case is fully stated in the opinion of the court. The prisoner was not in this court at the hearing, his presence having been waived by his counsel of record.

Messrs. W. P. Murphy, M. W. Gary and J. W. Moore , for appellant.

Mr. Solicitor Gantt , contra.

OPINION

MCIVER, A. J.

The defendant in this case having been convicted of murder, made a motion in arrest of judgment, and also for a new trial in the Circuit Court, and his motions there being refused, he now renews them here upon the same grounds taken in the court below.

The motion in arrest of judgment is based upon the ground that the Circuit judge erred in discharging two of the jurors, one of whom had been drawn from the county at large and summoned under the general venire . It appears that when the list of jurors, drawn and summoned for the term at which this case was tried, was called over, only twenty-eight answered. The court thereupon ordered sixteen additional jurors to be drawn from the box containing the names of persons residing within five miles of the court-house. After the jurors so drawn had been summoned, ten of them appeared, making, with those already in attendance, thirty-eight jurors, whereupon the Circuit judge, of his own motion, and for cause satisfactory to himself, excused two of the jurors, one of whom lived at a considerable distance from the court-house. It does not appear that there was any challenge of the array, nor was there any objection made until after the verdict in this case was rendered. So that even if these jurors were improperly excused, the objection could not avail the defendant, unless it appeared that he was injured thereby. Gen. Stat., ch. CXI. , § 29, p. 523; State v. Stephens , 11 S. C. 319.

In this case there is nothing to show that the defendant's rights were impaired or in any way interfered with by the discharge of these two jurors. It does not appear that his right of peremptory challenge, which, it must be remembered, is a right to reject and not a right to select jurors, (State v. Wise & Johnson , 7 Rich. 412,) was in any way abridged, and we are at a loss to conceive how the discharge of these jurors, even if it had been illegal or irregular, could operate to the prejudice of any of the rights of the defendant. We are unable to appreciate the force of the argument urged here, that the discharge of a juror who lived at a considerable distance from the court-house, and the substitution of one drawn " from the vicinity in which the homicide was committed, where the prejudice would naturally be strongest against defendant," was necessarily injurious to him. We have always supposed that one of the peculiar merits of our system of trial by jury, is that the jurors were of the vicinage, and Blackstone, in 3 Com. 379, speaks of the right of a person accused of crime to be tried by his neighbors and equals as a " transcendent privilege." But even if there was any force in this argument, the defendant could, by the exercise of his right of peremptory challenge, have excluded every one of those who were drawn from the immediate vicinity where the homicide was committed, to supply the deficiency in the original panel, and, as it does not appear that his peremptory challenges were exhausted, the objection taken cannot avail the defendant. State v. Price , 10 Rich. 351; State v. McQuaige , 5 S. C. 429.

But we are by no means satisfied that any error was committed in discharging the two jurors. The Circuit judge undoubtedly had the right to excuse jurors for good and sufficient cause, and certainly in the absence of any proof to the contrary, we would assume that the judge in this instance had complied with the law by requiring the affidavits provided for by the statute. We are satisfied, therefore, that there was no error in refusing the motion in arrest of judgment.

The first ground on which the motion for a new trial is based, is that, under the circumstances of the case, the dying declarations of the deceased should not have been admitted in evidence. It seems that the first witness offered by the state to prove the dying declarations, one W. H. Bartless, testified as follows: " Was with Connolly [the deceased] some time before, and continued with him to the time of his death; deceased was rapidly sinking; I said to him: ‘ You are going to die, and if you have anything to say you had better say it.’ He then said: 'If I die,' " at which point he was stopped, and objection was made that the form of expression used indicated that the deceased had not then lost hope, and, therefore, the declarations were incompetent; and the objection was sustained. Subsequently another witness, J. Q. Connolly, a brother of the deceased, was offered by the state for the same purpose, who testified as follows: " Was with deceased at the time of his death; he was very low; asked for his wife; was told that she was sent for; replied: " Lord, I'll never see her-I am going to die.' W. H. Bartless was also there. I said to deceased: ‘ Who cut you?’ He said: ‘ Gouthe held me and Gill cut me.’ Deceased was conscious of his approaching death; asked for a preacher to pray for him; took my hand; told me good-bye and died a few minutes afterwards. W. H. Bartless was present at the time; I am brother to the deceased."

The rule as to the admissibility of dying declarations is, that two things must be made to appear before the declarations can be admitted. First . That the death of the declarant was imminent. Second . That he was so fully aware of this as to be without any hope of life. State v. Quick , 15 Rich. 349; State v. McEvoy , 9 S. C. 212.

It is very clear that the testimony of J. Q. Connolly, if believed by the judge before whom the case was tried, was amply sufficient to establish both of these propositions, and whether it should...