State v. Kelley

• Decision Date: 06 March 1896
• Citation: 24 S.E. 45,45 S.C. 659
• Parties: STATE v. KELLEY.
• Court: South Carolina Supreme Court

24 S.E. 45

45 S.C. 659

STATE v. KELLEY.

Supreme Court of South Carolina

March 6, 1896

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

J Newitt Kelley was convicted of an assault with intent to kill, and appeals. Reversed.

This appeal involves the question of the detention of a jury after a failure to agree on the facts, and the respective statements of the officer in charge of the jury and of the judge are as follows:

Affidavit of R. J. Scarborough:

"State of South Carolina, County of Darlington. Personally appears R. J. Scarborough, who, being first duly sworn, says that at the March term of the court of general sessions for the county and state aforesaid, owing to the sickness of his father, the sheriff of said county, deponent was in the court room in the capacity of deputy sheriff and constable during the greater part of the term, and for the most of the time that the petit jury charged with the trial of the above-stated case were in the jury room; that said jury retired to their room for the consideration of said case, after the charge of the judge, about 4 o'clock p. m. on the ___ day of March, 1895. After the jury had been out two or three hours, there was a knock at their door, and, upon deponent's responding to it, the foreman requested him to tell the judge that they could not agree. Deponent did so, and his honor directed him to inquire whether their difficulty was a matter of law or of fact. What the foreman said in answer to this deponent does not now recollect; but, upon deponent's return, his honor instructed him to let the jury alone. By direction of his honor, the jury were given supper, and, remaining in the jury room, were the next morning given breakfast. Some time after the court convened that morning, deponent was called by a knock at the door of the jury room, and the foreman requested him to say to the judge 'that, if they stayed in there a month, they couldn't agree, and they desired to come out.' Upon conveying this message, his honor told deponent to leave them alone. At dinner time of that day, and also at supper time, deponent went to his honor for permission to feed the jury, but his honor declined to permit this to be done. Some time after dark of that day, deponent was for a third time called to the jury room door by a knock, and was told by the foreman to tell the judge 'that they couldn't agree, and were hungry, and wanted to get out'. The foreman came out, and the judge asked him if it was about that case, and, the foreman replying, 'Yes,' the judge said he couldn't see one alone, let them all come out; and all the jurors came into the court room. His honor asked whether their disagreement was as to a matter of law or of fact. The reply was matter of fact, and his honor stated that in that he could not aid them and told them they must go back and try to agree. After this, and the judge having left the court room, at the request of the jury deponent went to the judge for permission to serve the jury with supper. He replied that he thought they would agree sooner without it, and they came out with a verdict. Some little time has elapsed, and I did not charge my memory with the matter, but the foregoing is what occurred, to the best of my recollection. R. J. Scarborough.

"Sworn to before me, this May 1st, 1895. W. Albert Parrott [L. S.], Clerk of Court, Darlington County."

Statement of the presiding judge settling case:

"The jury who tried the above-stated case retired with the case for consideration about 4 o'clock p. m. on March--, 1895. About 8 p. m. I ordered supper to be sent to them. I ordered breakfast the next morning. About 4 o'clock p. m. of this, the second day, Mr. R. J. Scarborough went to the jury room in response to what appeared to be a knock, and, after speaking to some one, came up to me, and said that one of the jury wanted to speak to me. I asked him if he was the foreman. He said, 'No.' I then asked him (Scarborough) what he wanted. He said he did not know. I asked him (Scarborough) if he was sick. He said he thought not, I said no more; neither did Mr. Scarborough. Some time later, say, about 6 o'clock p. m., there appeared to be another knock at the jury room door, and Mr. Scarborough went and opened the door, and, after a brief conversation with some one, came to me, and said that the foreman wanted to see me. I asked what the foreman wanted, and he said he did not know. As it was getting near night (second day), I concluded to call out the jury, and ascertain what was the trouble about the case, but I did not say so to Mr. Scarborough. I merely told him to let them alone, my intention being to call them out at a convenient point in the proceedings of the court. In a short time afterwards, half an hour or probably an hour, there was another knock, and Mr. Scarborough responded as before; and he again told me that the foreman wanted to see me. I said, 'Tell the foreman to come out.' When the foreman came out, I asked him if he wanted to see me about the case, and he said, 'Yes.' I then told him to tell all of the jury to come out. He did so, and they came out. The clerk called the roll, and asked the foreman if they had agreed on a verdict, and the foreman said, 'No.' I then asked if the trouble was a matter of law or of fact. The foreman said: 'Well, we don't agree.' I then said, 'If it was a matter of law, I could charge you again; but, since it is a matter of fact, I can't assist you for you are the sole judges of the facts.' I then added, 'I think you can agree; retire to your room.' All of them arose, and the foreman said, 'We have been in the room twenty-four hours, and can't agree.' I then said, 'Well, retire and consider the case,' and they retired, and in the early part of the night (this I heard from others afterwards) agreed, and came out and rendered a verdict of guilty at the opening of the court next morning. I put them in charge of some constables the first night, and gave them an envelope with the usual instructions about bringing in a sealed verdict, and these instructions were not changed. Supper was furnished the first night, and breakfast next morning; and I then told the deputy sheriff, Mr. R. J. Scarborough, to give them nothing more to eat, that they would never agree if we kept on giving them sumptuous meals every meal time. I did not intend that they should suffer for food or anything reasonable and proper for them to have, nor do I believe that they did suffer for one moment. I was informed afterwards that there was only one who stood out, and that the other eleven were delighted when the rations were stopped. I heard nothing from the jury either directly or indirectly till 4 o'clock p. m. of the second day, as above stated, and nothing at any time about their being hungry. Nor did Mr. Scarborough or any one else ask me to let the jury be fed after breakfast of the second day, when I told Mr. Scarborough to stop feeding them, as I have already stated. Mr. Scarborough has certainly mixed this case up with some other case. D. A. Townsend, Trial Judge."

Boyd & Brown, for appellant.

J. M. Johnson, for the State.

McIVER C.J.

The defendant was indicted for...