State v. Johnson
| Decision Date | 25 January 1923 |
| Docket Number | 11118. |
| Citation | 115 S.E. 748,123 S.C. 50 |
| Parties | STATE v. JOHNSON. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Anderson County; Geo E. Prince, Judge.
Jerry Johnson was convicted of violating the prohibition law, and from an order granting his motion for a new trial, the State appeals. Affirmed.
L. W Harris, Sol., of Anderson, for the State.
Dickson & Miller, of Anderson, for respondent.
The defendant, charged with violating the prohibition law, was tried and convicted at the May, 1922, term of the court of general sessions for Anderson county, Hon. Geo. E. Prince presiding judge. After the verdict of the jury was returned, the defendant moved for a new trial on the ground that one of the jurors by whom the defendant had been tried was a deputy sheriff of Anderson county. Thereupon Judge Prince passed the following order:
"It being made satisfactorily to appear to the court that one of the jurors sitting on the above-entitled case is a deputy sheriff appointed for one of the industrial corporations of Anderson county, and that this fact was unknown to the defendant or his counsel at the time, and not until the jury had returned its verdict of guilty, and that such juror was disqualified, on motion of defendant's attorneys for new trial, it is ordered that a new trial be, and hereby is, granted to the defendant, Jerry Johnson, and that his bond continue in force for his appearance at the next term of court."
From this order the state appeals.
No proposition is more decisively established in this jurisdiction than that an order of a circuit judge granting or refusing a new trial in a law case can only be reviewed by this court for the purpose of determining whether such adjudication was influenced or controlled by error of law or amounted to a manifest abuse of discretion. The state's contention here is that the circuit judge committed error of law in granting a new trial on account of the disqualification of juror "when no objection had been made previous to the verdict" and "when no prejudice has been shown to exist against the defendant."
While a "deputy sheriff" is not designated eo nomine in this ineligible list, and while in the following section (4037), conferring the privilege of "exemption" from jury service, "sheriffs and their deputies" are expressly mentioned, we are of the opinion that a deputy sheriff within the reasonable meaning and intendment of section 4035 is embraced within the phrase "or other county officer." The position of under or deputy sheriff is a common-law office (24 R. C. L. 979), and the provisions of our statutory law in no wise detract from its official character and importance. See sections 1146, 1147, 1149, 1150, Civil Code 1912. A deputy sheriff for an industrial corporation is vested with all the rights and powers "prescribed by law for constables or magistrates" (section 1150), and is required to take the oath of office "prescribed by the Constitution and statutes of this state" (section 1149), and to execute bond (section 1151). Since a "sheriff," "constable," and "magistrate" are expressly designated as ineligible for jury service, a deputy sheriff, vested with like powers and charged with like duties, would seem clearly to be embraced within the term "or other county officer," as used in section 4035. The word "eligible" in that connection means capable of serving; legally qualified to serve. See 2 Words and Phrases, Second Series, 241. Hence, as we think, the circuit judge correctly held that the deputy sheriff in the case at bar was legally disqualified for service as a juror.
But it does not follow that, because the juror was disqualified, the defendant was entitled as a matter of legal right to a new trial on that account. Section 4047 of Civil Code 1912, expressly requires that "all objections to jurors," if not made "before the juror is impaneled for or charged with the trial of such prosecution," etc., "shall be deemed waived; and if made thereafter shall be of none effect." It is no valid ground for setting aside the verdict of a jury that the moving party was ignorant of the disqualification of a juror, and so failed to challenge him, if the disqualification relied on might have been discovered by the exercise of ordinary care. The rule on the subject is thus stated in State v. Langford, 74 S.C. 460, 465, 55 S.E. 120, 122:
"It is true that in the case of Garrett v. Weinberg, 54 S.C. 127, 31 S.E. 341, 34 S.E. 70, this court held that a new trial should be...
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