State v. Mittle, 10951.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtCOTHRAN, J. FRASER, J.
Citation113 S.E. 335,120 S.C. 526
Docket Number10951.
Decision Date05 July 1922

113 S.E. 335

120 S.C. 526


No. 10951.

Supreme Court of South Carolina

July 5, 1922

Appeal from General Sessions Circuit Court of Orangeburg County; I. W. Bowman, Judge.

Edward N. Mittle was convicted of manslaughter, and he appeals. Affirmed.

Watts and Fraser, JJ., dissenting. [113 S.E. 336]

Wolfe & Berry, T. M. Raysor, and E. C. Mann, all of Orangeburg, and Cole L. Blease, of Columbia, for appellant.

A. J. Hydrick, Sol., J. L. Dukes, and Sims & Sims, all of Orangeburg, and M. L. Smith, of Camden, for the State.


The appellant was convicted of manslaughter under an indictment charging him with the murder of one J. H. Patterson on November 14, 1920, and was sentenced to imprisonment for a term of nine years.

The setting of this case with its event in a scene of blood, gathered from the lips of the defendant himself, puts him in an attitude of wrong, and leads to the conclusion that the jury took a merciful view of his offense, if they were convinced, as their verdict shows, that his plea of self-defense was not sustained.

Prior to his relations with Mrs. Star Jackson (daughter of Mr. A. F. Sain), a widow, and a sister-in-law of the defendant, he had been twice married. His first wife died, leaving several small children. At that time Mrs. Jackson was employed in the bank of which the defendant was cashier. Friendly, if not affectionate, relations, perfectly legitimate, sprang up between them, and marriage was discussed, but abandoned. The defendant married a young woman from Charleston, but lived with her only a few years. They separated, and he had begun divorce proceedings, claiming to be a resident of Augusta, Ga. The defendant removed to Greenville, but made occasional business visits to his former home. Upon one of these visits in October, 1920, he insisted upon marriage with Mrs. Jackson. He knew that his divorce had not been perfected, but carried her to a magistrate, where the ceremony was performed without a license. The couple then went to the home of Mrs. Jackson's family, reported their marriage, and spent the night there. The next day they motored to Columbia and spent the night at a hotel, going from there to Greenville, where she was installed as the mistress of his home. In the meantime Mr. and Mrs. Sain, having learned that [120 S.C. 530] there was doubt as to the divorce, went to Greenville and interviewed the defendant. He admitted that the divorce had not been perfected, and Mr. and Mrs. [113 S.E. 337]

Sain returned to Rowesville, their home, taking their daughter with them, the defendant accompanying them as far as Columbia. The following week the defendant returned to Rowesville and went to Mr. Sain's house to see Mrs. Jackson. He was not allowed to see her, in which exclusion Mrs. Jackson actively participated, and returned to Greenville. He had led her into a state of concubinage knowingly. He says that she knew that the divorce had not been perfected, a statement hardly supported by her determination not to see him. During the week of the homicide he returned to Orangeburg and was again unable to communicate with Mrs. Jackson. He started to return to Greenville, got as far as Columbia, and returned the night of the homicide. When he reached the Sain house about 8 p. m. an automobile was standing at the gate. He testified that he did not know that Patterson was there, thought Mrs. Jackson was having company, and determined to wait until the company left and then have an interview with her at the window, as he had been forbidden to enter the house. He took several short runs in his car, "killing time," and walked around for about an hour waiting for the company to leave. About 11 o'clock Patterson came out of the front door, and begged Mrs. Jackson to go with him. She refused. He put his arms around her and kissed her and went to his car. The defendant was then standing near Patterson's car, and when Patterson turned on the lights he saw the defendant and asked, "Who is that?" The defendant answered, giving his name, and testified that Patterson with a threat started to attack him, when he fired rapidly, inflicting fatal wounds. Patterson had a pistol in his overcoat pocket, but did not draw it. The evidence tended to show that the ground around the car had been tramped down to some extent, as by some one [120 S.C. 531] waiting, and the tires of the car had been cut. On the last trip the defendant had seen Patterson on the street and had remonstrated with him for calling upon "my wife." Patterson promised to desist. He appeals to this court upon 14 exceptions which raise various questions. They will be considered in their logical order.

1. Was there error in refusing the defendant's motion to quash the entire venire of petit jurors upon the ground that all women electors were excluded from the jury box when it was made up in December, 1920? The appellant's contention is that the jury commissioners of the county of Orangeburg deliberately failed and refused to select any women for jury duty, although there were many women within the county of Orangeburg qualified for jury service, but selected only men, which was and is contrary to the rights of the defendant under the Constitution of the United States and the state of South Carolina. This contention necessarily rests upon the propositions: (1) That the Nineteenth Amendment confers upon women the right of suffrage; and (2) that the right or privilege of, or amenability to, jury service, is implied in the constitutional grant of the right of suffrage. Neither of these propositions can be sustained. The amendment is as follows:

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex."

It is a popular, but a mistaken, conception that the amendment confers upon women the right to vote. It does not purport to do so. It only prohibits discrimination against them on account of their sex in legislation prescribing the qualifications of suffrage, a very different thing from conferring the right to vote, which is left to legislative enactment, restrained only by the inhibition against the prescribed discrimination.

The Nineteenth Amendment is in the precise terms of the Fifteenth, with the substitution of the word "sex" [120 S.C. 532] for the words "race, color or previous condition of servitude." It has been repeatedly held by the Supreme Court of the United States that the Fifteenth Amendment does not confer upon colored men the right of suffrage; it only forbids discrimination. U.S. v. Reese, 92 U.S. 214, 23 L.Ed. 563. See other authorities cited in 9 Rose's Notes, p. 56. The Nineteenth Amendment must, of course, receive the same construction. If, therefore, the privilege of jury service can be implied from the right of suffrage, which we deny, it could not be claimed as a constitutional right unless the right from which it is derived is conferred by the Constitution.

Can it be said that the right to jury service is implied from the grant of the right of suffrage, assuming that the effect of the amendment is to confer that right?

The right to vote and eligibility to jury service are subjects of such diverse characteristics and demanding such different regulations that it is impossible to consider the one as implied in the other. To hold that one who is a qualified elector is ipso facto entitled to jury service is to deprive the Legislature of the right to prescribe any other limitation upon the right to jury service. It could not prescribe the age limit, the sex, or the mental, moral, or physical qualifications of a juror, matters which appeal so strongly to the judgment, in prescribing the fitness for their responsible duty, with due regard to the sensibilities and delicacy of feeling of those involved.

The Constitution of Wyoming (Const. art. 6, § 1) provided:

"The rights of citizens of the state of Wyoming to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this state shall equally enjoy [113 S.E. 338] all civil, political and religious rights and privileges [120 S.C. 533] ."

In the case of McKinney v. State, 3 Wyo. 719, 30 P. 293, 16 L. R. A. 710, the defendant moved to quash the venire upon the ground that the Constitution gave women the right to serve as jurors, and that, as only men had been drawn, the venire was illegal. The court held against the contention, saying:

"The right to vote and hold office does not include the right, if right it may be termed, to serve as a juror."

In Strauder v. W. Va., 100 U.S. 310, 25 L.Ed. 664, a case involving the Fifteenth Amendment, the court said:

"We do not say that within the limits from which it is not excluded by the amendment a state may not prescribe the qualifications of its jurors and in doing so make discriminations. It may confine the selection to males, to freeholders, * * * to persons within certain ages, or to persons having educational qualifications."

See, also, State v. James (N. J. Err. & App.) 114 A. 553, 16 A. L. R. 1141, where the same question arose and is quite interestingly discussed.

Another ground for denying the right of the defendant to raise the question of the exclusion of women from the jury lists is the fact that he does not belong to the excluded class. State v. James (N. J. Err. & App.) 114 A. 553, 16 A. L. R. 1141; McKinney v. State, 3 Wyo. 719, 30 P. 293, 16 L. R. A. 710, and cases cited in the latter case.

Not being implied in the Nineteenth Amendment, the right of jury service by a woman is expressly denied by the state Constitution (article 5,§ 22), "The petit jury of the circuit courts shall consist of 12 men." The further provision in that section, "Each juror must be a qualified elector," does not confer upon every elector, male or female, the right to jury service. It means that every...

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