State v. Robertson

• Decision Date: 04 January 1899
• Citation: 31 S.E. 868,54 S.C. 147
• Parties: STATE v. ROBERTSON.
• Court: South Carolina Supreme Court

31 S.E. 868

54 S.C. 147

STATE v. ROBERTSON.

Supreme Court of South Carolina

January 4, 1899

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

W. W Robertson was convicted of manslaughter, and he appeals. Affirmed.

J. A Mooney, for appellant.

U. X Gunter, Asst. Atty. Gen., for the State.

McIVER C.J.

The defendant was indicted for murder, and was convicted of manslaughter, with a recommendation to mercy; and from the judgment rendered upon such verdict the defendant appeals, upon the following grounds: "(1) That his honor, the presiding judge, erred in charging the jury as follows: 'Now, when the killing is in a quarrel and encounter if the facts show that it arose out of the misconduct of the defendant, the law says that malice on the part of the defendant is inferred.' (2) That the presiding judge erred in not granting defendant's motion for a new trial: (a) It having been shown and admitted that the juror Cunningham had served as a petit juror in the former trial of this case, and which fact was unknown to the defendant and his counsel until after the trial herein; (b) it appearing by affidavit that the said juror voted at the former trial of said case for a verdict of manslaughter." In the "case" we find the following statement: "It is admitted that at the term of the court preceding that at which the defendant was tried and convicted of manslaughter, and from which this appeal is taken, the said defendant was tried under said indictment, and a mistrial was had; that at said trial the above-named juror, H. B. Cunningham, was a member of the panel, and voted for a verdict of manslaughter; that, when said juror was called and examined upon his voir dire at the last trial of said cause, neither the defendant nor his counsel knew that he had served on the jury at the former trial, and did not ascertain that fact until after the trial and verdict, when the defendant's counsel was informed of it by an officer of the court; that the above facts were made to appear by affidavit, and a motion for a new trial was duly made before the presiding judge upon that ground, among others, and said motion was refused, and the defendant sentenced to two years in the state penitentiary at hard labor. The evidence was the same at both trials." It also appears from the "case" that when the juror Cunningham was examined on his voir dire the following occurred: "Q. Have you formed or expressed an opinion as to the guilt or innocence of the defendant, Robertson? A. Yes, sir. Q. Upon what was the opinion based? A. From what I heard of the evidence. Q. Notwithstanding that opinion, do you think you can give the prisoner a fair and impartial trial according to the law and the evidence as you may hear here? A. Yes, sir; I think so. Q. Have you any bias or prejudice against the prisoner at the bar? A. No, sir." Whereupon the juror was sworn. It does not appear that the prisoner had exhausted his peremptory challenges before reaching this juror, nor does it appear that he challenged the said juror.

Inasmuch as the appellant was convicted of manslaughter only, which wholly excludes the idea of malice, it is very manifest that the first ground of appeal cannot be sustained; for, even if the proposition of law excepted to be erroneous, it is quite certain that such error was entirely harmless, as the verdict demonstrated that the jury did not believe that the killing was actuated by malice. Hence any inquiry into the correctness of the proposition of law in the judge's charge to which error is imputed would be purely speculative, and cannot, therefore, be properly pursued in this case.

The second ground of appeal presents questions of an important character, which demand the serious consideration of this court. It must be remembered that in the present constitution, unlike that of 1868, it has been declared, in mandatory terms, as follows, "The petit jury of the circuit courts shall consist of twelve men, all of whom must agree to a verdict in order to render the same," and further that "each juror must be a qualified elector under the provisions of this constitution, between the ages of twenty-one and sixty-five years, and of good moral character." Const. art. 5, § 22. Hence, when the fact has been ascertained by the proper authority, invested with jurisdiction to determine, that some one or more of the body of persons organized as a jury did not possess the qualifications required by the constitution, their verdict must be set aside, upon the ground that it was not the verdict of a constitutional jury. Garrett v. Weinberg (S C.) 31 S.E. 341. But in the case now under consideration the objection to the juror Cunningham was not based upon the ground of lack of any one of the qualifications prescribed by the constitution, and hence the decision in the case just cited does not conclude the inquiry. Here the objection to the juror in question was based upon the ground, not that he was disqualified from serving as a juror in any cause, but that he was disqualified from serving as such in this particular case, because of the fact that he was not "indifferent" (as it is termed in the statute) as between the parties to this case, by reason of the fact that he had served as a member of the jury to which this case had been committed at the preceding term of the court, when the jury failed to agree, and a mistrial was ordered, and had then formed and expressed an opinion as to the guilt or innocence of the defendant. Every fairminded person will readily recognize the importance of having the jury to whom a case is submitted for trial composed of persons who, as far as practicable, are free from any bias or prejudice, either for or against one or the other of the parties, whether the same arises from interest, by reason of relationship or otherwise, or from having previously formed or expressed an opinion as to the merits of the controversy. The lawmaking power, recognizing the importance of this matter, has made ample provision for attaining the desired end; for it is provided in section 2403 of the Revised Statutes of 1893, that "the court shall, on motion of either party in suit, examine, on oath, any person who is called as a juror therein, to know whether he is related to...