State v. Kelley
|24 S.E. 45,45 S.C. 659
|STATE v. KELLEY.
|06 March 1896
|United States State Supreme Court of South Carolina
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:
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.
The defendant was indicted for...
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