State v. McNinch

• Decision Date: 31 May 1879
• Docket Number: CASE No. 740.
• Citation: 12 S.C. 89
• Court: South Carolina Supreme Court
• Parties: THE STATE v. ALFRED MCNINCH.

12 S.C. 89

THE STATE

v.ALFRED MCNINCH.

CASE No. 740.

Supreme Court of South Carolina.

May 31st, 1879.

1. The jury commissioner who assisted in drawing the grand jury that found the bill of indictment, and the petit jury that convicted the prisoner, was the husband of a fourth cousin of deceased. Held, no ground for quashing the indictment, or granting a new trial.

2. That the Circuit solicitor went into the room of the grand jury after they had agreed, and at the request of the foreman, to instruct him how to write the finding, is no ground for quashing an indictment. Distinction drawn between this case and State v. Addison, 2 S. C. 356.

3. It is the right and duty of the solicitor on many occasions to inform and instruct the grand jury as to the manner in which the business in their hands is to be conducted. Semble.

4. The established practice of permitting the state in a case of felony to order jurors to stand aside without challenge or cause shown, until the panel has been exhausted-approved.

5. Whether a witness is drunk or not, and whether his evidence, relating to the question in issue, is material or not, are questions of fact for the jury.

6. In a capital case this court will take notice of errors apparent upon the record affecting the substantial rights of the prisoner on his trial, although not made a ground of appeal.

7. A prisoner has the right to cross-examine a witness for the prosecution before he leaves the witness-stand; and a refusal of such right is proper ground for a new trial.

Before ALDRICH, J., at Laurens, February, 1879.

The prisoner was indicted for the murder of William C. Kilgore, on December 2d, 1878.

Besides the facts stated in the opinion of the court, it appears that while the jury was being empaneled, the solicitor ordered jurors to stand aside, without challenge or cause shown; but that the panel being exhausted these same jurors were recalled and presented to the prisoner.

J. S. Grimes, a witness sworn for the prosecution, gave testimony concerning the circumstances of the difficulty which ended in the death of the deceased. In his charge to the jury the judge said: “I do not give the evidence of this witness [ i. e., Grimes,] because he was withdrawn and not cross-examined; I suspected he was drunk, but as the attention of the court was not called thereto, I exercised a liberal charity and let him go. He said nothing material.” His Honor made the following report afterwards upon this matter, the Mr. Garlington referred to being counsel assisting the solicitor in the prosecution:

“The witness, Grimes, was presented by the state, and was examined by Mr. Garlington. His answers to the first questions attracted my attention. I suspected he was intoxicated. A few more answers convinced me he was drunk. The examination proceeded until, I think, the counsel, the jury, and the bar came to the same conclusion, when Mr. Garlington proposed to withdraw him, in which I acquiesced. The defence claimed the right to cross-examine, which was admitted by the solicitor. The presiding judge said: ‘Of course you have the right to cross-examine, but I do not see the use of continuing the examination in his present condition; he may be recalled, either to resume his examination in chief or to cross-examine, as may be desired by the prosecution or the defence.’ The witness was withdrawn, after some consultation between the counsel for the defence, and was not recalled by either side. No exception was taken, and the right to cross-examine not denied.

After he was withdrawn I lost sight of him; had never seen him before and supposed he was very drunk, until to-day, when I was informed it was his natural manner. This may be so, but I do not think I could be mistaken. In my opinion the man was drunk.”

At the conclusion of his charge to the jury, the judge was requested by the prisoner to charge the jury in the words set out in the third and fourth grounds for a new trial in this court. Upon these two requests his Honor reports: “I was requested to give certain instructions to the jury, as contained in first request, which being, in my opinion, covered by the charge, were refused. I did charge as requested in the second request, but added that it was the duty of the jury to inquire who was the first wrong-doer.”

The prisoner was convicted.

The case was brought to this court by the defendant upon the following notice and grounds:

The defendant, Alfred McNinch, notifies of an appeal, and that he will move in the Supreme Court, at the next regular term thereof, to reverse the ruling of his Honor Hon. A. P. Aldrich, in his refusal to quash the indictment herein:

I.

1. Because Stobo D. Garlington, the jury commissioner, who assisted in drawing the grand jury who found the bill of indictment, was the husband of a cousin of the deceased, William C. Kilgore.

2. Because the solicitor, B. W. Ball, Esq., had, under the direction of the court, free access to the grand jury, and did visit the same, before and during the day they had under consideration the bill of indictment in this case.

II.

1. And the said defendant will at the same time move to set aside the verdict in this case, and the judgment of the court thereon, on the further ground that his Honor the presiding judge erred in allowing the solicitor, when the petit jury was empaneled, to cause jurors then presented to the prisoner to stand aside, without challenge and without cause shown.

2. Because his Honor the presiding judge erred in withdrawing from the consideration of the petit jury charged with the trial of this action, the testimony of one J. S. Grimes, a witness on the part of the prosecution, after he had testified.

3. Because his Honor the presiding judge, although requested so to charge, refused to charge the jury that all the circumstances of the homicide having been disclosed by evidence for the prosecution, the homicide does not imply malice, but malice can be established only by the circumstances themselves.

4. Because his Honor, when charging by request, that “it is for the jury to inquire if the deceased struck the first blow with his pistol upon the prisoner, and if the prisoner should reasonably fear for his life, or fear great bodily harm, then, as a matter of law, the prisoner might be found not guilty,” erred in adding that it was also the duty of the jury to inquire who was first in the wrong.

5. Because the said jury commissioner, being connected by marriage with the said deceased, assisted in drawing the petit jury who tried this cause.

6. Because the Circuit judge erred in charging the jury that in the testimony of J. S. Grimes, he said nothing material.

Messrs. Pope, Baxter & Caldwell, for appellants.

Upon the first ground taken for quashing the indictment, reference was made to 5 S. C. 429; and upon the second ground, to 2 S. C. 356. The challenge to the array of the petit jury and the motion to set aside the venire because drawn by a relative of the deceased after his death, should have been sustained. 5 S. C. 429. The state having now the right to challenge two jurors peremptorily, cannot require any to stand aside. Before the act of 33 Edward I., the right of peremptory challenges by the king was unlimited. 1 Chit. on Crim. Law 534. That act took away from the king the right of peremptory challenge, and it became the practice to allow the king to require the jurors to stand aside. That act was made of force in South Carolina in 1731, but was repealed by implication in 1871, (14 Stat. 694,) and expressly in 1872, ( Gen. Stat. 782.) So now the state has only two peremptory challenges.

The witness, Grimes, was withdrawn before cross-examination, without the consent of the prisoner, who insisted upon his right to cross-examine. In charging the jury that this witness said nothing material, his Honor disregarded the requirement of Section 26, Article IV., of our state constitution. Its materiality was a question of fact, and the judge's misapprehension of that testimony invalidates the judgment. 1 Mill Con. R. 200, 216; 1 Bail. 482;2 Bail. 128;5 S. C. 65, 67. Upon the third ground for a new trial, counsel cited 6 S. C. 185;42 N. Y. 1;53 N. Y. 164; 1 Archb. Crim. Pr. and Pl., Pomeroy's Notes, 152. Upon the fourth ground, they contended that the words added were indefinite and might mislead. It may have carried their minds to offensive words, rather than to illegal acts. 6 S. C. 185.Mr. Solicitor Ball, for the state.

As to the relationship of the jury commissioner, see 1 Burr. Law Dict. 69, title “Affinity.” There is no nearness in this case. A challenge to the array may be based on partiality of the officer. 1 Co. Lit. 156, 1 st Am. ed. The early decisions have reference to the sheriff or other officer who returned the venire. 3 Whart. on Crim. Law., § 3016. But here the state is a party and not the deceased. Under our statute, there are three officers. The motion to quash is not proper-there should have been a challenge to the array, and that could be only in writing. 3 Whart. on Crim. Law, § 2947. If defendant is correct, the trial might be perpetually blocked. As to the solicitor going into the grand jury room, we have no statute in our state. Mr. Chitty says it is permitted in England. See 1 Whart. on Crim. Law 495, 496. This case in every aspect is very different from Addison's case. 2 S. C. 356.

The right of the state to require jurors to stand aside temporarily, is well settled. Gen. Stat. 747; 2 N. & McC. 553; 7 Rich. 416; 3 Whart. on Crim. Law, § 2956. The present statute does not affect this right, because it gives to the state two peremptory challenges; standing aside for cause, as authorized in 33 Edward I., does not mean the same thing.

As to the witness, Grimes. He testified in the hearing of the jury, and it was no error in the judge not to read over his testimony to them. There was nothing that he said that was favorable to the prisoner, and therefore he is not prejudiced.

The judge properly...