State v. Royster

• Decision Date: 14 July 1936
• Docket Number: 14333.
• Citation: State v. Royster, 181 S.C. 269, 186 S.E. 921 (S.C. 1936)
• Parties: STATE v. ROYSTER.
• Court: South Carolina Supreme Court

186 S.E. 921

181 S.C. 269

STATE v. ROYSTER.

No. 14333.

Supreme Court of South Carolina

July 14, 1936

Appeal from Common Pleas Circuit Court of Union County; M. M. Mann Judge.

G. A Royster was charged with murder and arraigned. From an order granting defendant's motion that all textile members of the jury venire, whether members or nonmembers of a labor union, be excluded from serving as jurors in the case, the state appeals.

Reversed.

Samuel R. Watt, Sol., of Spartanburg, and J. Frost Walker, Jr., of Union, for the State.

Barron, Barron & Walker and John D. Long, all of Union, for respondent.

PER CURIAM.

The following agreed statement of fact, with slight variations as to phraseology, is contained in the record for appeal: At the September, 1935, term of the court of general sessions for Union county, the grand jury returned a true bill charging the defendant Royster with the murder of one W. B. Franklin on or about June 19, 1935. The alleged killing occurred at Monarch Mills, in the suburbs of the city of Union, during a fight between certain of the mill employees who were out on a strike and other employees who had not struck. A large crowd of union people had gathered at the mill gate, armed with clubs and sticks, and as the employees were leaving the mill at the noon hour, a young man by the name of McCutcheon, who had been working that morning, was attacked by a man from Tucapau, S. C., and what practically amounted to a riot followed, in which one A. L. Stutts, an overseer in the cardroom of Monarch Mills, was shot and killed by Franklin, who himself was immediately thereafter shot and killed by the defendant. Franklin, who at the time of the homicide was a magistrate's constable, had been employed as a deputy by Monarch Mills to police the mill property, but a short time prior to the killing had been replaced by Royster.

Immediately upon the return of a true bill by the grand jury, the defendant was arraigned, and the solicitor inquired of counsel as to when they would be ready for trial, and was told that they desired the court to hear and to pass upon a motion. They then moved that all textile members of the jury venire, whether members or nonmembers of a labor union, be excluded from serving as jurors in the case. The motion was supported by a number of affidavits, which stated, in substance, that a strike was on at the Monarch Mills at the time of the homicide; that several hundred people had gathered in front of the mill and a large number of them were armed with sticks and other weapons; that at 12 o'clock, when the workers at the mill filed out through its gates, the shooting took place; that on account of the strike and the killing of Stutts, a nonunion man, by Franklin, a union member, there was considerable feeling between the members of the union of the Monarch Mills and other textile workers; that four members of the jury venire belonged to the labor union at Monarch Mills and were among the strikers at the time of the fatal shooting; that the feeling existing between the union and the nonunion members was so intense and bitter that none of the textile workers would be unprejudiced jurors in the case; that at the time the venire was drawn by the jury commissioners, there were several members of the local union of the United Textile Workers at Monarch and Ottaray Mills present, and that the union raised funds for the purpose of employing counsel to assist in the prosecution; that the feeling of prejudice existing between members and nonmembers of the union had spread to the various mills in Union county, where local affiliated unions of the United Textile Workers are located; and that all textile employees were prejudiced, one way or another, and were lined up on one side or the other, and could not, therefore, be fair and impartial in the matter. The affidavits presented showed a strong and bitter feeling existing against the defendant Royster on the part of members of the various local unions of the United Textile Workers, and that this feeling was especially intense and bitter at the two adjoining plants, known as the Monarch and the Ottaray. These affidavits were signed by 21 citizens of various walks of life in Union county. No affidavits were presented or testimony produced to show that there was any irregularity, or any violation of the law, either in the drawing of the jury or in the serving of the jurors.

The solicitor opposed the motion; but the presiding judge granted it and ordered 15 of the jurors out of the 36 on the venire, who were textile employees, excluded from service in the case, and directed the clerk of the court to take the names of these 15 out of the jury box. He then instructed the jury commissioners to draw a venire of jurors, who would necessarily have to come from the 5-mile box, to serve in the case, but not to draw any textile employees. The judge held, in substance, that the affidavits presented showed that the feeling existing between union and nonunion employees of the textile mills of the county, especially at Monarch and Ottaray plants of the Monarch Mills, was intense and bitter, and also tended to show that each side believed that its economic interest was involved. He stated that in the event such interest of either side was affected by the outcome, aside from the question of discretion, he felt that he would be compelled, as a matter of law, to hold that such jurors should be excluded. He further stated that he was solely concerned in obtaining for the state and for the defense a fair and impartial trial, and that under the showing made by the affidavits, this could only be done by excluding the jurors from each class, namely, the union and nonunion members, and that he thought as a matter of discretion it was his legal duty to exclude them.

The solicitor, stating in open court that he conceived the ruling to be prejudicial to the rights of the state and one that might be invoked as a broadening precedent, and that the state would be wholly without a remedy if he proceeded to trial, asked the court to continue the case in order that an appeal might be taken from such ruling. The motion was granted, and the questions involved have been duly argued here and presented for our consideration and decision.

We shall first notice the contention of the respondent that the appeal should be dismissed on the grounds (a) that it is premature because not from a final judgment, and (b) that it presents only an abstract question, as the defendant could not now be tried before either of the venire affected by the order.

As to ground (a), State v. Byars, 79 S.C. 174, 60 S.E. 448, and State v. Burbage, 51 S.C. 284, 28 S.E. 937, are cited and relied upon. In the first of these cases the state excepted to an order granting the defendant a new trial. This court refused to pass upon the questions raised, holding that appeal would lie only from sentence; a final judgment. In the second, the court held that an order overruling a motion to quash the indictment was not appealable. While we adhere to the principles stated in these decisions, it will be seen from a reading of them that the orders there appealed from did not interfere with the state's right to obtain a trial before a lawfully selected jury, with individual disqualification ascertained in accordance with prescribed tests. In the case at bar, the effect of the order made, and as made, was not limited to that term of the court, but applied in its effect to any venire of jurors by which the defendant might be tried at any time. In other words, the order, unappealed from, would become the law of the case obtaining throughout its prosecution. It is seen, therefore, that the question here presented is wider in its reach and more vital than any question arising upon the erroneous standing aside of a juror or the erroneous quashing of a panel, either of which would not serve as a precedent or as an order made and continuing with the force of the law of the case. The state was without remedy, therefore, except by appeal.

As to ground (b), what we have already said applies. Ordinarily, an abstract question will not be considered. But it appears,...