GARY
A. J.
The
defendant was indicted for the murder of Frank Deal, and the
case was tried before his honor Judge Purdy and a jury on the
26th of June, 1907. The jury rendered a verdict of guilty,
and he was sentenced to imprisonment for life.
The
first assignment of error is that his honor the presiding
judge refused the defendant's motion for a continuance.
The following statement appears in the record: "Upon the
call of the case for trial defendant's attorneys moved
for a continuance upon the ground of the absence of three
witnesses, including Mrs. Lola Mills, defendant's wife.
In this motion defendant's attorney did not claim that
Mrs. Mills was not able to testify by reason of being
pregnant; but the ground for continuance, so far as it
related to her, was solely on the ground, as stated by them,
that they could not have her at court. In support of their
motion, they submitted affidavits and letters. Attorneys for
the state submitted counter affidavits, letters, and
communications, as well as oral testimony. After
consideration of same, the court ordered that the case
proceed to trial. After this ruling was made, one of the
attorneys for the defendant made reference to the alleged
condition of Mrs. Mills, but was told by the judge that this
statement was insufficient, but that he could file an
affidavit to that effect, which was done after court
reconvened in the afternoon, and the motion for a continuance
was renewed on this ground, and was overruled by the judge.
After testimony on both sides was closed, Mrs. Mills, who was
in Gaffney before defendant closed his case, came into the
courtroom, and from that time on till the verdict was
rendered sat with the defendant during the further
proceedings and arguments. Mrs. Mills appeared to be
reasonably strong, and did not appear to be overcome
physically by the ordeal of sitting during the proceedings
of the court. Mrs. Mills wore a maternity
cloak, and, while apparently pregnant, there was no means of
determining the stage of such pregnancy." At the time
the motion was made Mrs. Mills was in North Carolina, and
therefore was not within the jurisdiction of the court. She
gave birth to the child on the 6th of October, 1907. The
appellant's attorneys have failed to satisfy this court
that there was an abuse of discretion in refusing said
motion.
The
next assignment of error is that the
presiding judge overruled the motion of the defendant's
attorneys to quash the venire. Before the jury was impaneled
the defendant's attorneys made a motion to quash the
venire, on the ground "that the jurors were selected in
a different way from that prescribed by statute; that names
were drawn out of the box that were not put on the venire;
and that the venire was composed of men that they selected,
and that they discarded the names of men as jurors for
reasons other than those prescribed by the statute, to wit,
absence from the county, or unable to attend court."
Upon the request of the appellant's attorneys W. D. Camp,
the county auditor, was placed upon the stand, and testified
as follows: "Q. You were the auditor of the county when
this panel was drawn? A. Yes, sir. Q. Squire, how many names
were drawn out of the box altogether? A. I don't know how
many were drawn out altogether. We would take out a name, and
we would generally consult whether we knew that man and his
character and whether he was a fit man to be on the jury. If
he was not, we would take his name out and lay it aside. Q.
How many names did you reject that way? A. I have no idea
about that. Q. That is what we want to know? A. When we
refused one, didn't think he was qualified as a legal
juror, we would lay it aside until we got our number. Q. What
test did you apply in determining whether he was a proper man
for a juror or not? A. We generally wanted to
know him, whether there was any legal objection to him. Q. If
you didn't know him, you objected? A. Sometimes. Q. When
you didn't know him at all, you would reject him? A. No;
not on that ground alone. Q. When you didn't know him,
what other ground did you have? A. Where we didn't know
whether he had a good character. Q. Then you rejected him? A.
Yes, sir. Q. How many of that kind did you reject, because
you didn't know them? A. I have no idea how many. Q. Did
you reject a half a dozen on that ground? A. Not any one in
particular. Q. On the ground you didn't know him? A. I
don't think we did. Q. You do not know how many you
rejected on that ground? A. Do not know. Q. You rejected some
on the ground you didn't know them? A. Yes, sir. Q. Did
you reject any others on any other ground? A. I don't
remember the particular grounds. Q. Why did you reject the
others? A. We didn't think he was a competent man to
serve on the jury. Q. Competent in what way? A. In our
judgment, we thought he would not be a good juror; didn't
have any judgment; illiterate man. Q. Only men who had
judgment and were not illiterate could serve on the jury? A.
No; we thought we tried to pick the best men we could in the
county. Q. In other words, you selected the jury out of those
names which you drew out? A. We rejected men that we thought
perhaps might not be competent to sit on a jury. Q. On what
ground? A. On the grounds discussed. We would discuss the
matter between ourselves. Q. I want to know on what ground?
A. If we knew the man was a drunkard. Q. How many of that
kind did you reject? A. I don't know that. We never
counted the names that we rejected. Q. You did reject some?
A. I do not know how many because of drinking liquor. Q. You
didn't think for that reason that they ought to sit on
the jury? A. Rowdy man. Q. You don't know how many you
rejected on that account? A. No. Q. On what other ground did
you prevent them from sitting on the jury? A. I don't
know. Q. Can you give me the names of the men
you rejected? A. No, sir; I just laid them down there-laid
them aside. Q. I am trying to get at the grounds you thought
were incompetent, those you knew you rejected? A. I don't
recollect any particular kind of excuse. Q. Some you rejected
on the ground that you thought, as you say, were illiterate
men-men that could not read and write? A. That we thought had
not sufficient information. Q. So you rejected some because
you didn't know them, and you rejected others because
they were illiterate and you thought didn't have
sufficient information to serve as a juror? A. I thought
pretty near every man in the county was known by one or the
other of us. Q. That was the method you all adopted in
selecting a jury out of those names that were drawn out of
the box? A. We consulted as to whether they were proper men.
If he was not competent, then we rejected him. Q. In arriving
at that conclusion as to whether they were proper men or not,
men whom you didn't know, that none of you knew, to be a
good juror? A. We might have done that as one reason perhaps.
Q. Those you didn't think could read and write or had
sufficient information, why then you put them aside? A. I
suppose so."
Section
2 of the act of 1902 (23 St. at Large, p. 1066) provides that
the county auditor, county treasurer, and the clerk of court
shall prepare a list of the qualified electors, under the
provisions of the Constitution, between the ages of 21 and 65
years, and of good moral character, as they may deem
otherwise well qualified to serve as jurors, being persons of
sound judgment, and free from all legal exceptions. Section 4
provides that the jury commissioners shall draw from the jury
box 18 ballots containing the names of 18 persons, who shall
constitute the grand jury; that, "if there shall be
drawn from said box a ballot containing the name of any
person not between the ages of 21 and 65 years, or not of
good moral character, or who has died, or who has removed
from the county, or is otherwise disqualified to serve as a
juror, such ballot shall be destroyed, and such name struck
from the said list, and another ballot drawn,
and so on, until the 18 are secured." The petit jury is
drawn in the same manner. Section 7 is as follows: "That
all jurors shall be selected by drawing ballots from the said
jury box, and, subject to the exceptions hereinbefore
contained, the persons whose names are on the ballots so
drawn shall be returned to serve as jurors." Section 14
is as follows: "That the jurors drawn and summoned under
the provisions of this act must have the qualifications that
are now, or may hereafter be, prescribed by law." When
the testimony of the auditor is considered in its entirety,
we are unable to discover anything except the honest effort
of a faithful officer to allow none but those possessing the
qualifications prescribed by statute to serve as jurors, for
which he is to be commended. The jury commissioners are
allowed the same discretion under section 4 as is conferred
upon them by section 2. It is not contended that any of the
persons drawn to serve as jurors were disqualified, and, even
if there were irregularities, they are not such as to render
the venire illegal. Rhodes v. Railroad, 68 S.C. 494,
47 S.E. 689; State v. Smalls, 73 S.C. 519, 53 S.E.
976; Hutto v. Railroad, 75 S.C. 295, 55 S.E. 445;
State v. Smith, 77 S.C. 248, 57 S.E. 868.
The
third exception is as follows: "That his honor erred in
permitting testimony of the witness...
