State v. Kelley

• Decision Date: 09 March 1896
• Citation: 24 S.E. 60,46 S.C. 55
• Parties: STATE v. KELLEY et al.
• Court: South Carolina Supreme Court

24 S.E. 60

46 S.C. 55

STATE v. KELLEY et al.

Supreme Court of South Carolina

March 9, 1896

Appeal from general sessions circuit court of Darlington county; D A. Townsend, Judge.

James R. Kelley and James Newit Kelley were convicted of an assault with intent to kill. The following are the grounds of appeal "Due notice of intention to appeal was given, and defendants appeal to this court for error in the presiding judge refusing defendants' motion for a new trial. (1) Because that the 12 additional jurors drawn to supply a deficiency in the regular jury were not presented to the defendants in the order and manner required by law, practice of the circuit court, and the rules of the circuit court. (2) That the jurors so drawn were not called or presented to the defendants in the order in which they were drawn, nor were their names put in a hat and drawn therefrom by lot; but without having been called, the names of the first four who appeared in the court room were put in a hat and drawn therefrom, and, as so drawn, the jurors were presented to the defendants. The jury not being then complete, and two others of the additional jurors having appeared in the court room their names were then put in the hat, and these jurors, as drawn, presented to the defendants; and so the drawing and presentation of the jurors proceeded until the panel was completed, but so soon as defendants' counsel ascertained the manner in which the additional jurors were being drawn and presented, which was directly after the first four were presented, they objected in behalf of the defendants, but the objection was overruled, and the drawing and presentation proceeded as above stated. Before the panel was complete the defendants had exhausted their challenges, and subsequently the twelfth juror was presented and sworn in, against their objection, and while they were powerless to reject. IT is submitted that it was error in thus drawing and presenting the additional jurors, and a violation of the rights of the defendants. (3) That the solicitor was permitted to introduce in evidence, against the objection of the defendants, the negative of a photograph alleged to represent the window through which the shooting was done, after the occurrence, with Jenkins sitting on the bed with his head bound in cloths; his honor ruling that it could be admitted just as a diagram could be admitted. (4) His honor, the presiding judge, against the objection of the defendants, admitted testimony as to unfriendly occurrences between defendants' brother and one L. M. Crosswell, a trial justice, and an influential witness for the state, with which the defendants were in no way connected, and the only purpose or effect of which was to unjustly and improperly prejudice the minds of the jurors against the defendants." Affirmed.

Boyd & Brown, for appellants.

J. M. Johnson, for the State.

POPE J.

The defendants, having been convicted and duly sentenced for assault and battery with intent to kill, appealed to this court. The grounds of appeal will be reported. The first question, which is raised by the first and second grounds of appeal, may be thus stated: Is it legal, against the objection of defendants, interposed at the time, to complete a jury for their trial from the names of jurors on a special venire, when the first four of such jurors are presented in advance of the other jurors constituting the special venire, and before such other names are placed in the covered box, and also, when the prisoners have exhausted their right of challenge, two additional jurors' names are placed in the covered box and drawn, as required by law, to complete the panel? It seems that, of the 36 persons who composed the petit juries, 12 were in the jury room, engaged in making up their verdict in another case, and, when the prisoners were being tried, they exhausted the remaining 24 names by their challenges, still leaving the jury for trial incomplete; that thereupon the circuit judge ordered a special venire of 12 to be made up in accordance with our statutes. Of this special venire 4 jurors appeared in court, and the presiding judge ordered their names to be placed in the covered box, to be drawn and presented to the prisoners. In challenging some of the four jurors, the jury still lacked one of completion, but the defendants had exhausted their challenges. Two others of the special venire came into court, and the circuit judge ordered their names to be placed in the covered box, and one to be drawn therefrom, thus completing the jury. The defendants objected to this last step, and requested that the remainder of the special venire (eight) should be placed in the covered box before any one of them should be drawn. The presiding judge overruled this objection. We do not think the circuit judge erred in overruling the objection. It is now a settled law in this state that the right of the accused in the matter of what persons shall compose the jury charged with his trial is confined to such rejections as he may make within the number allowed by the statute. When the accused has exhausted his challenge, the next juror or jurors drawn, necessary to complete the panel, must sit. We know of no law or custom in this state which renders it necessary that every member of a special venire shall be present before the name of any one of the jurors included in such special venire shall be drawn and presented to the accused. There is no complaint here that the names were not drawn by lot from a covered box by a boy under 10 years of age, but only that all the names on the special venire were not placed in the covered box before any one was drawn therefrom. These objections cannot be sustained.

The next question suggested by the appellants is contained in the third ground of appeal, namely, that it was error to allow the witness M. A. Helm, who was a witness for the state, to testify in the reply as to a negative photograph he had made, next morning after Mr. Jenkins was shot, of the window through which he was shot, and also of Mr. Jenkins in the position in the bed he was in when shot, and also to exhibit the photograph to the jury. In the direct examination of this witness, no reference was made by the solicitor to this matter; but, when the defendants' counsel was cross-examining this witness, he asked him: "What was your business in Hartsville?" Answer: "Taking pictures, sir." "Did you take any for Mr. Jenkins?" Answer: "I took some for him the morning he was shot that night, the 22d." "Do you mean his own picture?" Answer: "Yes, sir." "Did you take any others for him except his own?" Answer: "No, sir; only I took a picture of the window where he was shot, he sitting by it in the position he was in when he was shot." "Did Mr. Jenkins have any connection with your line of business?" Answer: "None at all." When the solicitor examined this witness in reply, he asked the witness: "Have you the negatives with you of that room?" Answer: "I believe I have a proof of one that was taken of him at the window." Question: "When did you take this picture that Mr. Brown asked you about, --this of Mr. Jenkins,--when did you take it?" Answer: "I took it the next morning after he was shot." Question: "This is a representation of what window?" Answer: "Of the window that is south, I suppose. That is the window in our room,--the window through which he was shot." Question: "Where was your instrument when you took this, inside or outside the house?" Answer: "It was outside." Question: "Where was Mr. Jenkins at the time you took that picture?" Answer: "He was sitting near about where he was shot." The solicitor here offered to introduce the picture in evidence. Defendants' counsel objected. The court practically ruled that the picture might be introduced as a diagram prepared by Mr. Helm. We think there was no error here. The witness was inside the room where Mr. Jenkins was shot at the time it happened. He saw one of the defendants in the room at the time of the shooting, and heard that defendant request Mr. Jenkins to sit up in bed, in which position Mr. Jenkins was when he was shot by some one just outside the window, and through a pane of glass in the sash of the window. Mr. Helm made this picture the next morning after the shooting, and, at the request of the solicitor, explained to the jury, from this diagram he himself had made, where the shot went through the pane of glass, and Mr. Jenkins' position in bed when he was shot. It seems to us that this was perfectly competent. In the case of Rapley v. Klugh, 40 S.C. 134, 18 S.E. 680, this court held that a diagram of a small lot of land, made by one who was not a surveyor, might be admitted in testimony to explain the impressions of a witness, who was not an expert, "of the form of a house, direction of a road, or, it may be, the way a piece of land appeared to...