State v. Rafe

• Citation: 34 S.E. 660,56 S.C. 379
• Parties: STATE v. RAFE.
• Decision Date: 02 January 1900
• Court: United States State Supreme Court of South Carolina

34 S.E. 660

56 S.C. 379

STATE v. RAFE.

Supreme Court of South Carolina

January 2, 1900

Appeal from general sessions circuit court of Spartanburg county Ernest Gary, Judge.

Will Rafe was convicted of murder, and moved in arrest of judgment. From a judgment overruling the motion, defendant appeals. Affirmed.

C. P Sims, for appellant.

Asst Atty. Gen. Gunter, for the State.

GARY A. J.

The following are all the facts stated in the record: "This case was tried at the May term of the court of general sessions for Spartanburg county before Judge Gary and a jury. The defendant was convicted of murder, and sentenced to be hanged the third Friday in June, 1899. After his conviction and before sentence, a motion was made in arrest of judgment on the following ground, to wit: Because the indictment upon which the defendant was tried and convicted was an illegal indictment, for the reason that the grand jury which passed upon it, and found a true bill against defendant, was an illegal grand jury, because one of its members, to wit, E. C. Jameson, was not a qualified elector, as required by the constitution of this state. The motion was overruled by the presiding judge, and the defendant sentenced. From such judgment and rulings of the circuit court defendant gave due notice of appeal, and does now appeal, to the supreme court, and will ask a reversal thereof, on the ground that the circuit judge erred in refusing defendant's motion in arrest of judgment. It is admitted as a fact in this case that E. C. Jameson was a member of the grand jury which passed upon the indictment herein, and that he was not at that time a qualified registered elector, as required by the constitution of 1895, and that defendant's motion in arrest of judgment was made as soon as this fact was ascertained by him." This case was submitted without argument or authorities on either side.

Act 1899, p. 39, provides as follows: "That all objections to jurors called to try prosecutions, or actions, or issues, or questions arising out of actions or special proceedings, in the various courts of this state, if not made before the juror is impaneled for, or charged with, the trial of such prosecution, or action, or issue, or question arising out of actions, or special proceedings, shall be deemed waived; and if made thereafter shall be of none effect." As grand jurors are not "impaneled for, or charged with, the trial of the prosecution," the foregoing act has no application, and the appeal will be considered without reference to it.

Section 2406 of the Revised Statutes is as follows: "If a person knows of any objection to a juror in season to propose it before the trial, and omits to do so, he shall not afterwards be allowed to make the same objection, unless by leave of the court." This section has undergone judicial construction, and in the very recent case of Mew v Railway Co., 56 S.C. ___, 32 S.E. 828, the question raised by the exception in this case is conclusively disposed of. In that case, Mr. Justice Jones, speaking for the court, in an able and clear opinion, says: "Previous to the constitution of 1895, the rule had long prevailed in this state that what was cause for challenge to a juror could not, after verdict, be made a ground for new trial. State v. Quarrel, 2 Bay, 150; State v. O'Driscoll, Id. 153; State v. Fisher, 2 Nott & McC. 261; Billis v. State, 2 McCord, 12; Josey v. Railroad Co., 12 Rich. 134. In the case of Garrett v. Weinberg, 54 S.C. 127, 31 S.E. 341, and 34 S.E. 70, this court held, under the constitution of 1895, that a new trial should be granted if a juror, disqualified by conviction for hog stealing, sat on the case, if neither the party nor his counsel knew of the...