State v. Loftis

• Decision Date: 14 November 1957
• Docket Number: No. 17352,17352
• Citation: 100 S.E.2d 671,232 S.C. 35
• Parties: The STATE, Respondent, v. Reed LOFTIS, Appellant.
• Court: South Carolina Supreme Court

Page 671

100 S.E.2d 671

232 S.C. 35

The STATE, Respondent, v. Reed LOFTIS, Appellant.

No. 17352.

Supreme Court of South Carolina.

Nov. 14, 1957.

John K. Grisso, Anderson, for appellant.

Solicitor Rufus Fant, Asst. Solicitor Oscar H. Doyle, Jr., Anderson, for respondent.

MOSS, Justice.

The appellant, Reed Loftis, was tried and convicted at the February 1957 term of General Sessions Court for Anderson County, South Carolina, before the Honorable J. Henry Johnson, presiding Judge, upon an indictment charging him with assault and battery of a high and aggravated nature.

While the jury was deliberating, and after the case had been submitted to them, the trial Judge, in the absence of the jury, instructed the bailiffs to take the jurors to lunch. They proceeded to escort the jury to a restaurant about a block from the courthouse and when they arrived at the restaurant it was discovered that one of the jurors was missing. The juror was located at his home and in response to instructions by one of the bailiffs he returned to the jury room in the courthouse. A son of one of the bailiffs went to the jury room and told the juror to join the other members of the jury at the restaurant. This son accompanied the juror from the courthouse to the restaurant. This juror was separated from the other jurors for a period of thirty minutes to one hour. It appears that after the jury had finished the meal that they returned to the jury room, and after additional deliberation and a further charge by the court, the appellant was found guilty.

Immediately upon learning of the separation of the juror in question, the appellant through his counsel, informed the court of the happening and made a motion for a new trial, upon the ground that one of the jurors had separated himself from the jury after the case had been submitted to it, and while the jury was deliberating on the case.

The court cited the bailiffs and the juror for contempt. A hearing was had before the trial Judge. At the hearing affidavits of the two bailiffs were submitted and the testimony of one of the bailiffs was taken in open court. The testimony of the bailiff's son was likewise taken. An affidavit was submitted by the wife of the juror.

It appears from the affidavits of the bailiffs and from the testimony of one of the bailiffs that when the court directed that the jury be taken out to lunch, he announced such to the jury, but that when they arrived at the restaurant one of the jurors was missing. It further appears that one of the bailiffs called the juror by telephone, at his home, and told him to rejoin the other jurors. It also appears that the son of one of the bailiffs had accompanied his father to the restaurant and that this son went back to the courthouse and found the juror in the jury room. He instructed the juror to join the other jurors at the restaurant and accompanied him from the courthouse to the restaurant.

The juror in question was sworn and testified as follows:

'Q. You didn't understand that you were to get dinner on the County? A. No, sir.'

And again from his testimony:

'Q. Well, how did you get away this time? A. I thought all the rest went home to dinner.

'Q. Were you the last to come out of the jury room? A. Yes, sir.'

And again from the juror's testimony we quote the following:

'Q. Mr. Holcombe, I understand when the bailiffs were taking the jury to dinner that you left the jury--where did you go? A. I got in my car and went home.

'Q. Did you talk to anybody before you got there? A. No, sir.

'Q. Did anybody talk to you? A. No, sir.

'Q. When you got home, after you got home, did you talk about this case any? A. My wife asked me who we were trying and I told her.

'Q. Did you and your wife, or anybody, discuss the facts in the case at all? A. No, sir.

'Q. Then while you were at home, I believe you got a message that you were due to be with the jury? A. Yes, sir.

'Q. What did you do then? A. I went to the court house and went to the jury-room.

'Q. You went to the jury-room? A. Yes, sir.

'Q. During your absence from the jury--from the time you left until the time you got back with the jury, I will ask you: did you talk with anybody at all about the case? A. No, sir.

'Q. Did anybody talk to you about the facts in the case? A. No, sir.'

The affidavit of the wife of the juror confirms that there was no discussion with her concerning the case, other than that which is related in the testimony of the juror. The testimony of the son of the bailiff confirms the fact that he did not discuss the facts of this case with the juror.

In making a motion for a new trial counsel for the appellant made the following statement: 'I would like for the record to show that I am objecting to any statement that Mr. Holcomb might have to say with regard to no improper influence having taken place, not that I have reason to believe that the man was improperly influenced, but I think if he were he would be probably the last one in the world to admit it.' (Italics added)

The trial Judge, upon the completion of the hearing, exonerated the bailiffs and the juror of any contempt of court and refused the motion for a new trial. He stated with reference to the testimony of the juror, 'I am satisfied that Mr. Holcombe has told me the truth and nothing but the truth when he says he didn't talk with anybody about this case, * * *'. There is no appeal from this finding of fact. It is, therefore, binding upon this court.

The case is here on exceptions challenging the ruling of the trial Judge in refusing the motion for a new trial.

The mere fact that a jury wrongfully separates without leave of the court after submission of a case is not per se sufficient for setting aside a verdict. In the event of a separation the general rule is that a new trial will be granted if there is probability that the jury may have been tampered with, but not where the court is satisfied that the prisoner has not sustained injury. 53 Am.Jur., Trial, para. 879, at page 637.

In the case of Pulaski & Co. v. Ward & Co., 2 Rich. 119, 31 S.C.L. 119, a motion was made for a new trial on the grounds that the jurors had acted improperly by some of them leaving the room after they had retired and before they had agreed upon a verdict. In dismissing the motion, the court said:

'In Harding's case [State v. Harding], 2 Bay, 267, and Key v. Holeman, Ib. [2 Bay] 315, the court laid down the rule that they would not hear affidavits of the misconduct of a juror unless copies of such affidavits were served on him before the adjournment of the court. We will not say that this rule of practice is so inflexible that there may not be exceptions to it. But in a case like the present, where the verdict was rendered on Tuesday, and the court sat until Saturday, late in the day, there can be no reason for departing from the decision. The court, therefore, will not hear the affidavits. But to be sure that there had been no tampering with the purity of jury trials, we have looked into the affidavits, and find that the juror who left the room, did so to obtain water for one of his fellows, and that his judgment, or that of his brethren, was not in anyway affected by it. Still, we take this occasion to say, that the juror's conduct was very improper, and that if it had been brought to the view of the judge below, the juror, and the constable having the jury in charge, would have been severely punished.

'It may not be improper here to say that I entirely approve of the rule stated in Graham on New Trials, ch. iv. para. 6, p. 85, as to the effect of the misconduct of jurors in separating before they are agreed on a verdict, on a motion for a new trial. 'Upon this point,' he says, 'the practice in this country appears to have resolved itself into the exercise of a judicial discretion, confining the motion for a new trial to the question of abuse, and invariably denying the application where no injury has ensued.' The motion is dismissed.'

In the case of Sartor v. McJunkin, 8 Rich. 451, 42 S.C.L. 451, it appears that the jury had agreed upon their verdict, and dispersed without permission of the court. In refusing a motion for a new trial, the court said:

'The propriety of keeping a jury together until they have rendered in their verdict, cannot be too strongly inculcated; but the object is to obtain an unbiased expression of their judgment- ; and when, as in this case, it is obvious that their verdict was uninfluenced by any intervening cause, the Judge, in his discretion, was doubtless entitled to receive and record their verdict, although they had dispersed without his permission.'

In the case of McCarty v. McCarty, 4 Rich. 594, 38 S.C.L. 594, a motion was made for a new trial on the ground that pending the trial, and after the court had adjourned for the night, one of the defendants, in company with another person, met some of the jurors at a drinking shop, and treated them to some liquor, and was there seen in conversation apart with one of the jurors. The court refused the motion. Upon appeal the court said:

'Some certain rule on the subject now before the Court would be most acceptable; it is not easily prescribed. I have examined the cases referred to in the argument, and such as I have been able otherwise to collect, and at last it would seem that when questions for new trials arise, founded on such complaints, they must depend rather on judicial...