State v. Sanders

• Decision Date: 26 February 1916
• Docket Number: (No. 9273.)
• Citation: 88 S.E. 10
• Court: South Carolina Supreme Court
• Parties: STATE. v. SANDERS.

88 S.E. 10

STATE.

v.SANDERS.

(No. 9273.)

Supreme Court of South Carolina.

Feb. 26, 1916.

Appeal from Common Pleas Circuit Court of Richland County; H. F. Rice, Judge.

"To be officially reported."

James Sanders was convicted of murder, and appeals. Reversed and remanded for new trial.

On motion for new trial the defendant presented an affidavit that one of the state's witnesses had been a convict in the penitentiary, and one that affiant, with others, met two of the state's witnesses and the decedent, who were drunk, and interfered with them, cursed them, and acted otherwise in a hostile manner. The court, in ruling on the motion, said:

"Well, that would not justify me in setting the verdict aside. You can appeal from the judgment of this court to the Supreme Court and go before the Supreme Court with your affidavits and ask the Supreme Court to stay the hearing of that appeal until you come down to this court and make a motion. You could get a stay from the Supreme Court and come before this court on your affidavits after due notice to the state, and make your motion on after-discovered evidence in this court. But I could not even entertain a motion for a new trial and order a new trial without giving the state an opportunity to rebut those affidavits. What I mean to say, it would not be proper now for me, on an ex parte showing, to entertain a motion for a new trial on after-discovered evidence. I want to explain that that will not cut you out of making your motion, and in order to preserve your rights I will tell you now that I will not entertain that motion or pass on it, so that, if you see fit to make a motion for a new trial on after-discovered evidence, you can do so. It is not proper to do so now at this time on ex parte showing without giving the state a proper showing."

Jacob Moorer, of Orangeburg, and N. J. Frederick, of Columbia, for appellant.

Solicitor W. Hampton Cobb, and Cole L. Blease, both of Columbia, for the State.

GARY, C. J. The defendant, James Sanders, and his wife, Adlee Sanders, were indicted for the murder of Charles T. Filers; and, upon their trial, the jury rendered a verdict of "not guilty, " as to Adlee Sanders, and "guilty of murder" as to James Sanders. The sentence imposed upon the appellant by the court was that he suffer death by electrocution, on the 16th of July, 1915. He appealed upon numerous exceptions which will he reported.

The first exception is as follows:

"It is respectfully submitted that his honor erred in overruling, without giving opportunity to prove, the motion to quash the indictment, wherein it is alleged that the grand jury was unlawfully constituted, in that, in the formation of the same, discrimination was made against the Negro race because of race and color."

It does not appear from the record that the appellant's attorneys offered to introduce any testimony to sustain the facts alleged in said action.

The second exception is as follows:

"Because his honor erred in overruling the motion to set aside the array of petit jurors, on the ground that it was not a lawful panel, for the reasons that: (1) The testimony shows undoubtedly that discrimination against the Negro race was made in the formation of the said panel because of race and color; and (2) because the law under which the panel was made up is unconstitutional, in that the' said law gives the jury commissioners the power to add other qualifications which control those provided by the Constitution."

The first assignment of error under this exception cannot be sustained, as it has not been made to appear that his honor the presiding judge's findings of fact were erroneous. And it is only necessary to refer to the ease of State v. Franklin, 80 S. C. 332, 60 S. E. 953, which was affirmed on appeal by the United States Supreme Court (Franklin v. South Carolina, 218 U. S. 161, 30 Sup. Ct. 640, 54 L. Ed. 980) to show that the second assignment of error cannot be sustained.

The third exception is as follows: "Because his honor erred in not allowing the registration books to be put in evidence to show the extent to which the registered names thereon are marked, for the purpose of showing race and color, for the reasons that the registration books are the best evidence of the facts sought to be proven."

Even if there was error, it was not prejudicial, as it was conceded that, on the books there are a great many names marked with the letter "C" or "Col" to indicate that they were colored people. His honor, the presiding judge, ruled, however, that this was nota sufficient reason for sustaining the motion; and, in so ruling, it has not been made to appear that there was error.

The fourth exception is as follows:

"Because his honor erred in forcing the defendant to use his peremptory challenges, against jurors R. L. Bailey and T. D. Murtishaw, when they should have been set aside by the court for cause, for. the reason that the examination on voir dire, the said jurors said that they had formed an opinion, and were prejudiced in this particular case."

When the juror R. L. Bailey was sworn on his voir dire, the record shows that the following took place:

"Q. Mr. Bailey, are you related by blood or connected by marriage with Charles T. Ellers that these people are accused of killing? A. No, sir. Q. Did you know him in his lifetime? A. I did not. Q. Have you formed or expressed any opinion as to the guilt or innocence of ...