State v. McQuaige
| Decision Date | 15 December 1874 |
| Citation | 5 S.C. 429 |
| Parties | STATE v. MCQUAIGE. |
| Court | South Carolina Supreme Court |
Exceptions for error, in overruling challenges for cause made by a prisoner on trial for murder, will not be considered where the jury was completed without exhaustion of the right of peremptory challenge.
It is a good ground of challenge to the array on the trial of a prisoner for murder, that the Jury Commissioner is a near blood relation of the deceased, and that he assisted at the drawing of the jury.
BEFORE TOWNSEND, J., AT MARLBOROUGH, MAY TERM, 1874.
John R. McQuaige, the prisoner, was under indictment for the murder of Robert J. Breeden, deceased; of the thirty-six petit jurors composing the original panel for the present term, five did not attend, and their places were supplied by five others summoned from the by-standers. The panel being thus complete, the prisoner submitted, in writing, a challenge to the array, on the ground that the Jury Commissioner was a first cousin of the deceased, and that he assisted at the drawing of the jury.
The challenge was overruled, and the prisoner excepted.
Of the jurors, as they were called to be sworn, nine challenges for cause were made by the prisoner-two of which were allowed and seven overruled. Of the seven overruled three were challenged because they had married second cousins of the deceased-three because they were tenants, servants, croppers or employees of Joseph J. Breeden, the Jury Commissioner, who was a first cousin of the deceased, and one because he was a servant of P. L. Breeden, a first cousin of the deceased and brother of the Jury Commissioner. Of the seven jurors whose challenges for cause were overruled, one was accepted by the prisoner and the other six peremptorily challenged by him. The prisoner made seventeen peremptory challenges in all.
In each case where a challenge for cause was overruled, an exception on behalf of the prisoner was taken to the ruling of the Court.
The prisoner was found guilty. He then moved the presiding Judge in arrest of judgment, on the same ground taken in his challenge to the array. His motion was overruled, and, after sentence, he appealed, on the ground of error in the Circuit Court: (1) In overruling his challenge to the array; (2) in overruling his challenges for cause; and (3) in overruling his motion in arrest of judgment.
Hudson , for the appellant, contended:
(1) That the challenge to the array should have been sustained-Whart. Cr. Law, § 2, 948; 3 Black. Com., 359, 365; 1 Chit. Cr. L., 540; 3 Wait's Pr., 103; Baylis vs. Lucas , 1 Cowp. 102; and (2) that the challenges for cause should also have been sustained-Whart. Cr. Law, § 3016; Chit. Cr. Law, 541; Harrisburg Bank vs Forster , 8 Watts 304; 3 Black. Com., 363; 3 Wait's Pr., 105; Churchill vs. Churchill , 12 Verm. 661; Armstrong vs. Timmons , 3 Harring. 343; The People vs. Bodine , 1 Denio 281.
McCall , Solicitor, contra, cited 1 Bish. Cr. Pr., §§ 763, 702; Whart. Cr. Law, §§ 2987, 3031; State vs. Price , 10 Rich. 356; People vs. Ransom , 7 Wend. 417; Goodrich vs. Burdick , 26 Mich. 39.
It is true that the system which exists in South Carolina, and probably in every State of the Union, for selecting a jury, as well for the trial of criminal as civil causes, differs from that which prevails at common law. Here the names of those who are authorized to act as jurors are prepared and placed in a box, from which they are drawn by the officer charged with that duty. At common law the jury is selected by the Sheriff from those qualified to sit, without regard to any designation by lot or chance.
Our Courts, however, have applied the same rules which have been established by English precedents for the government of those employed in the same high function, notwithstanding the essential difference which exists in the manner of its exercise. All the obligations which the common law imposes upon Sheriffs in the selection of juries are recognized in this State to their fullest extent, and will be enforced whenever the acts of those charged with the same duty are in question. The rights of parties in civil cases are in no way diminished by the change in the mode, and those accused by indictments are entitled to the benefit of any exception which would avail them under the common law system.
According to the existing law the process of preparing a jury list, and drawing juries from it in each County, is confided to a Board, consisting of a Jury Commissioner, to be appointed by the Governor and confirmed by the Senate, the Auditor and the Chairman of County Commissioners.-Gen. Stat., Ch. III, §§ 1 3, 4. It is substituted in the place of the Sheriff and Clerk, who, before the change, were the officers upon whom the drawing of juries devolved, by the statutes and rules of Court which were then of force, in regard to their functions in that behalf. The mere difference in the...
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