State v. Rector

• Decision Date: 02 December 1931
• Docket Number: 13285.
• Citation: 164 S.E. 865,166 S.C. 335
• Parties: STATE v. RECTOR et al.
• Court: South Carolina Supreme Court

164 S.E. 865

166 S.C. 335

STATE v. RECTOR et al.

No. 13285.

Supreme Court of South Carolina

December 2, 1931

Appeal from General Sessions Circuit Court of Greenville County; E C. Dennis, Judge.

Carlos A. Rector and another were convicted of manslaughter as accessories after the fact, and they appeal.

Affirmed.

See also (S. C.) 164 S.E. 872.

Mendel L. Smith, of Camden, and D. W. Smoak, J. D. Lanford, and J Frank Eppes, all of Greenville, for appellants.

J. G. Leatherwood, Sol., and C. G. Wyche, both of Greenville, for the State.

STABLER J.

About midnight on June 11, 1927, Captain Sam D. Willis, sheriff of Greenville county, was shot and killed in front of his garage at his home in the city of Greenville. The killing, as disclosed by the facts was brutal and cold-blooded. Subsequent investigations, which resulted in the trial of two persons, who, however, were acquitted finally, led to the arrest of a negro by the name of Blair Rook, who confessed that he went to the home of the sheriff at a late hour on the night named and concealed himself between a wire fence and the garage in the back yard, where he lay in wait until the deceased drove his car into the yard and got out, and that he then and there shot him to death without a word. In his confession, he stated that he was employed, for a monetary consideration, by Carlos A. Rector and J. Harmon Moore to do the killing. Moore was thereupon indicted for the murder, and was put on trial at the January, 1930, term of the court of general sessions for Greenville county, the Honorable W. H. Townsend presiding. During the trial, the court was advised by the solicitor of certain alleged misconduct of one of the jurors drawn and impaneled to try the case, and, after an investigation of the matter, a mistrial was ordered. Later, the defendant Rector was also arrested, on the statement of the negro Rook, that Rector and Moore had employed him to murder the sheriff. The indictment against Moore was then nol. prossed, and thereafter, numerous moves and counter moves having been made in court by the state and the defense, resulting in an appeal to this court (158 S.C. 212, 155 S.E. 385), a true bill was returned on a new indictment, against Rook, Rector, and Moore, and it was upon this indictment that the defendants Rector and Moore were arraigned and tried at the December, 1930, term of court, the Honorable E. C. Dennis presiding. The defendant Rook was not put on trial, but was used by the state as a witness. The indictment contained three counts: In the first count, all three of the defendants were charged, as principals, with the murder of Willis; in the second, Rook was charged with the murder, and Rector and Moore as being accessories before the fact; in the third, Rook was charged with the murder, and Rector and Moore as being accessories after the fact. The jury returned a verdict in the following form: "We find the defendants, Carlos A. Rector and J. Harmon Moore, guilty on the third count as per manslaughter." The court, after refusing a motion in arrest of judgment, sentenced each of the defendants to imprisonment for a period of ten years; they appeal to this court on assignments of error which we will now consider.

When the case was called for trial, a plea of former jeopardy was interposed by his counsel on behalf of the defendant Moore, the facts on which the plea rested being, substantially, as follows: In January, 1930, Moore, who was charged with the murder of Willis, was arraigned and put on trial. After several witnesses had testified on behalf of the state, the court ordered a recess from Friday until the following Monday, allowing the jurors, in the interim, to go to their homes, but specifically instructing them not to talk with any one or to allow any one to talk with them about the case. When court reconvened on Monday morning, January 20, the solicitor called to its attention certain affidavits which he had obtained during the recess and which alleged that one of the jurors named Babb had violated the instructions of the court, in that he had stated, in substance, after the court had recessed, in the presence of several persons in a café in the city, that he believed that the persons who had murdered Sheriff Willis had already been tried and acquitted, and that, so far as he was concerned, he would never convict a white man on a negro's testimony. Babb was then brought before the trial judge, and examined in open Court by him. The persons who had made the affidavits were also examined, and testified in substance as to the facts stated therein. The other jurors, who had been allowed to retire during these proceedings, were then brought in, and the court ordered a mistrial, holding that a sufficient legal necessity, under the facts shown, had arisen for his doing so. The defendant Moore did not consent thereto, but reserved to himself all the rights that he might have in the premises. The court thereafter held Babb to be in contempt of court and committed him to jail, which action on its part was afterwards affirmed by this court on appeal.

Judge Dennis, with the proceedings in the former trial with reference to this matter before him, overruled the plea of former jeopardy, holding that Judge Townsend had properly ordered a mistrial. The appellant Moore now excepts to this holding of Judge Dennis, on the ground that the mistrial was ordered by Judge Townsend without sufficient legal necessity therefor, and that, having been put in jeopardy on his first trial, he could not be tried again for the same offense.

We do not deem it necessary to go into an examination of the decisions in other jurisdictions with regard to this question; it has been adjudicated by our own decisions. We may say, however, that it is generally held that the presiding judge has the power in his discretion to order a mistrial when there appears to him a manifest necessity for such action. In the recent case of State v. Bilton, 156 S.C. 324, 153 S.E. 269, 276, a similar question was presented. This court in a very able opinion by Chief Justice Blease, had this to say:

"The decisions of the courts of other jurisdictions, and some from the appellate courts of this state, cited in support of it, have resulted in the statement that the proper general rule is this: 'The American cases hold generally that there must be a manifest necessity for the discharge of the jury and leave the courts to determine in their discretion whether under all the circumstances of each case such necessity exists. When such necessity exists, a plea of former jeopardy will not prevail on a subsequent trial. But if the jury are discharged without defendant's consent for a reason legally insufficient and without an absolute necessity for it, the discharge is equivalent to an acquittal, and may be pleaded as a bar to a subsequent indictment.' (Italics added.) 16 C.J. 250.

"The principles announced in the quoted language are very much in harmony with the expressions of some of our wise jurists delivered in recent cases, after our courts began to break away from the rigidness of the common-law doctrines. In State v. Briggs, 27 S.C. 85, 2 S.E. 854, 856, where the peculiar provisions of the Constitution of 1868 were under consideration, Mr. Justice McGowan, speaking of the 'necessity' under which a mistrial might be declared, said the circumstances thereabout must be extraordinary. Chief Justice McIver, in State v. Richardson, 47 S.C. 166, 25 S.E. 220, 35 L. R. A. 238, considering the provisions of both the Constitution of 1868 and those of the Constitution of 1895, referred, with approval, to the former expression of Justice McGowan. Mr. Justice Jones, in State v. Stephenson, supra [54 S.C. 234, 32 S.E. 305], quoted, with approval, language of the Supreme Court of the United States, that 'authority to discharge a jury from giving any verdict' was limited to circumstances showing that 'there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.' [ Thompson v. U. S., 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146.] Mr. Justice Hydrick, in speaking of the right of a trial judge to order a mistrial, under certain circumstances, indicated that a party, discovering that a disqualified juror had been drawn or impaneled, should promptly bring the matter to the attention of the court, and he said, 'The purpose of the law is to secure a fair and impartial jury for the trial of every case.' State v. Wells, 114 S.C. 151, 103 S.E. 515, 516."

The affidavits presented to Judge Townsend and the testimony of the juror Babb taken in open court are made a part of the record in the case at bar. Our examination of these affidavits and of the testimony taken convinces us that there was a manifest necessity for the action taken by Judge Townsend in ordering a mistrial. Not only was there no abuse of discretion on his part, but, under the facts disclosed, no other course was open to him. It was clearly established that the juror Babb had stated, in effect, that he intended to stand for an acquittal of the defendant Moore regardless of the testimony of the confessed murderer, the negro Rook, that Moore had employed him to do the killing, for no other reason than that Rook was a negro and Moore a white man. This disqualified him to sit as a juror in the case to decide the issue between the state and the defendant on the sworn evidence. Judge Dennis was therefore correct in overruling the plea of former jeopardy.

A motion was also made, on behalf of both defendants, to quash the indictment upon the ground that it was found by an illegal grand jury. The trial judge overruled the motion, and the appellants except and impute error.

The identical question here presented, arising out of the same...