State v. Milam

• Decision Date: 07 March 1903
• Citation: 43 S.E. 677,65 S.C. 321
• Parties: STATE v. MILAM et al.
• Court: South Carolina Supreme Court

43 S.E. 677

65 S.C. 321

STATE v. MILAM et al.

Supreme Court of South Carolina

March 7, 1903

Appeal from General Sessions Circuit Court of Laurens County; Watts Judge.

Ferrel Milam and Enoch McCoy were convicted of larceny, and Milam appeals. Reversed.

Ferguson & Featherstone and W. R. Richey, for appellant.

Asst Atty. Gen. Gunter, for the State.

POPE J.

Both defendants above named, being jointlyindicted for larceny were jointly tried therefor, were convicted, and, after having been sentenced, the defendant Ferrel Milam alone appealed to this court. His appeal virtually raises but two questions, namely: (1) Was the circuit judge in error in allowing J. H. Kennedy, who was sworn upon his voir dire as to his having expressed an opinion upon the case, to be sworn as a juror? (2) Was the circuit judge in error in refusing to admit as testimony in behalf of the defendant Ferrel Milam the testimony of Harry Madden and Sallie Milam both deceased, which had been offered at the first trial of said Ferrel Milam, when he (Ferrel Milam) alone was on trial on the foregoing indictment?

1. The circuit judge did not err in allowing J. H. Kennedy to be sworn as a juror to try this cause. This court has several times upheld the statute of this state which gives to the discretion of the circuit judge the determination of the question whether a juror is indifferent in the cause; and in the State v. Haines, 36 S. C., at page 507, 15 S.E. 556, the following language was used: "At this moment we cannot recall another instance of a statutory provision relating to the trial of causes such as that now under consideration that has been passed upon so frequently by this court, and that, too, with such distinctness. We have held in every case that this matter is confided by the law to the decision of the circuit judge, whose decision thereon, so long as it relates to a question of fact, will not be reviewed by this court." The case of State v. Summers, 36 S. C., at page 484, 15 S.E. 369, is about the same as the present case in regard to the examination of a proposed juror on his voir dire, when a juror was sworn, notwithstanding the expression of an opinion beforehand, but in view of his declaration that he would, nevertheless, be governed by the law and the testimony. This exception is, therefore, overruled.

2. We think, however, the circuit judge was in error in refusing to admit the testimony offered at the previous trial at this the second trial, so far as the defendant Ferrel Milam was concerned. Of course, such testimony could not be admitted so far as the defendant Enoch McCoy was concerned. ...