State v. Jackson

• Decision Date: 07 January 1890
• Parties: STATE v. JACKSON.
• Court: South Carolina Supreme Court

10 S.E. 769

32 S.C. 27

STATE v. JACKSON.

Supreme Court of South Carolina

January 7, 1890

Appeal from general sessions circuit court of Marion county; NORTON Judge.

Sellers & Sellers, for appellant.

J. M Johnson, for the State.

MCIVER J.

The appellant was indicted or and convicted of the murder of one William H. Brooks, on Friday, the 26th of April, 1889, and the appeal is based upon exceptions taken to the rulings of the circuit judge in impaneling the jury, and in excluding certain testimony, as well as to certain portions of the judge's charge to the jury. When the prisoner was arraigned, it appearing that only 31 petit jurors were present, his counsel moved that the jury commissioner be ordered into court, and required to draw a sufficient number of additional jurors to make up a full panel of 36. This motion was refused, to which exception was duly taken, and this constitutes the basis of the first ground of appeal on this branch of the case. When the case was called for trial and both parties had announced themselves ready, it appeared that a jury was then in the room, engaged in the consideration of another case; whereupon counsel for the prisoner moved to await the return of the absent jury, so that the names of the entire panel in attendance on the court might be placed in the hat before commencing the drawing of the jury to be charged with the trial of this case. This motion was likewise refused, and counsel for prisoner excepted. The drawing of the jury was then commenced, and before any juror was challenged, but after two had been accepted by the prisoner, the absent jury returned into court, when their names were also placed in the hat and the drawing proceeded; and before the prisoner had exhausted his peremptory challenges (only five having been so challenged) a jury was obtained, which was duly charged with the trial of the case. The refusal of this last-mentioned motion furnished the basis of the second ground of appeal.

It appeared from the testimony that, on the Saturday night preceding the Friday on which the homicide occurred, the prisoner, in company with one Rogers, had been fired upon by the deceased, or by a party of persons among whom was the deceased; and in his defense the prisoner proposed to show by the testimony of Rogers, as well as by his own, what passed between himself and Rogers, not in the presence or hearing of deceased, in regard to returning the fire, for the avowed purpose of showing that the prisoner desired to avoid taking life. Upon objection, this testimony was ruled out as mere hearsay, and not constituting any part of the res gestæ; and this ruling affords the basis of the third and fourth grounds of appeal. The appeal is also based upon sundry exceptions to the judge's charge which will be hereinafter stated and considered, but, as they rest upon detached portions of the charge, we think that, in justice to the circuit judge, his charge should be set out in extenso in the report of this case.

We see no error in the refusal of either of the motions made in reference to the formation of the jury. There is no statute or rule of practice, so far as we know, which requires that 36 or any specific number of jurors shall be in attendance on the court at the time a jury for the trial of a capital case is organized. If a sufficient number are present to enable the accused to enjoy all the rights guarantied to him by the law, he cannot complain that there has been any error of law in organizing the jury for the trial of his case. He is entitled to be tried by a jury composed of 12 men, and also to the number of peremptory challenges prescribed by statute; and if these rights are accorded to him, as they undoubtedly were in this case, we do not see what ground of complaint, so far at least as numbers are concerned, he can have. Indeed, the statute (Gen. St. § 2251) does not declare that 36 jurors shall be drawn and summoned, but, on the contrary, the language is: "No more than thirty-six persons to serve as petit jurors shall be drawn and summoned to attend, at one and the same time, at any court, unless the court shall otherwise order." This plainly shows that whether a greater number of jurors shall be drawn is a matter left to the discretion of the court. But, without pursuing the subject further, it seems to us that the question has been distinctly decided in the case of State v. Stephens, 13 S.C. 285, where it is said: "It was not necessary that the whole number of thirty-six jurors should be present at the commencement of the trial. No sanction exists for such a demand, either in the statute or the authorities." The distinction suggested by counsel for appellant between that case and this, that there no motion was made to fill up the panel as was done here, does not seem to us well founded. In that case objection was made to proceeding with the organization of the jury, because 36 were not present, which practically amounted to a motion to fill up the panel. But, more than this, the decision in that case was not rested upon the ground that no motion had been made to fill up the panel, but was placed distinctly upon the ground that there was no law requiring that 36 jurors should be present.

The next objection, based upon the fact that the names of all the jurors in attendance upon the court were not placed in the hat when the drawing commenced, cannot be sustained. We do not see how it is possible that this could have impaired, or in any way affected, any legal right to which appellant was entitled. It could not possibly affect his right of challenge, which it is well settled is a right to reject, and not a right to select, jurors, (State v. Wise, 7 Rich. Law, 412, followed in numerous cases, including the very recent case of State v. Jacob, 30 S.C. 131, 8 S.E Rep. 698,) as is conclusively shown by his having obtained...