State v. Sanders, 18823

• Decision Date: 05 September 1968
• Docket Number: No. 18823,18823
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Ernest Leroy SANDERS, Appellant.

Page 220

163 S.E.2d 220

251 S.C. 431

The STATE, Respondent, v. Ernest Leroy SANDERS, Appellant.

No. 18823.

Supreme Court of South Carolina.

Sept. 5, 1968.

W. L. Cooper, Jr., Phillip K. Wingard, Lexington, Forrest K. Abbott, Cayce, for appellant.

Sol. Hubert Long, Lexington, Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Edward B. Latimer and Emmet H. Clair, Columbia, for respondent.

LEWIS, Justice.

Defendant's appeal from a conviction of the crime of forgery presents the following questions for determination:

(1) Was there any competent evidence to sustain defendant's conviction?

(2) Was defendant entitled to have the grand jury polled to determine if the required number concurred in the return of the indictment against him?

(3) Did the court err in refusing to quash the indictment upon the grounds that (a) women were excluded from service on the grand jury which indicted defendant, (b) counsel were not timely appointed to represent the defendant, and (c) the indictment was rendered prior to a preliminary hearing and therefore the court had no jurisdiction of the cause.

(4) Did the indictment contain language which was irrelevant and prejudicial to the defendant?

(5) Did the admission in evidence of defendant's signature to a Federal Bureau of Investigation document constitute evidence of other crimes so as to prejudice defendant's right to a fair and impartial trial?

(6) Did the trial judge permit the solicitor to make improper and prejudicial argument to the jury?

(7) Did the imposition of the maximum sentence amount to an abuse of discretion by the trial judge?

(8) Was the defendant entitled to credit against his sentence for the time spent in jail awaiting trial?

The charge against the defendant concerned a check in the amount of $56.00, payable to defendant, and purportedly signed by 'W. Manning Harris, Lake Murray Development Co.' There is testimony that the defendant carried this check to one George W. Johnson, a retail liquor dealer, endorsed it, and obtained cash and liquor for the face amount thereof. The check was turned down and it subsequently developed that it was a forgery. A handwriting expert testified, from a comparison of the signatures on the check with defendant's handwriting, that the check was signed by defendant. There was therefore testimony that the defendant forged the name of W. Manning Harris to the check in question and that he presented it to the liquor store dealer as genuine. Such constituted ample evidence to sustain defendant's conviction of the crime of forgery and the trial judge properly so held.

The next question concerns the refusal of the trial judge to poll the grand jury. Defendant was indicted by the grand jury on May 22, 1967. His motion for a continuance was granted at that time and the case was subsequently called for trial on September 6, 1967. Upon the call of the case for trial on September 6th, defendant requested that the grand jury be polled to determine if the requested number concurred in the return of the indictment against him.

Under Article 5, Section 22, of the South Carolina Constitution, the grand jury consists of eighteen (18) members, twelve of whom must agree before an indictment can be submitted to the court. Defendant in this instance sought to have the court poll the grand jury to determine if twelve members agreed to a return of the indictment against him.

To poll the jury means 'to examine each juror separately, after a verdict has been given, as to his concurrence in the verdict.' Black's Law Dictionary, Fourth Edition, Page 1320.

While the court must be satisfied that at least twelve members of the grand jury agreed to the presentment, the defendant had no right to have the grand jury polled. Such is prohibited by the cloak of secrecy which has always been thrown around the deliberations of that body. The rule adhered to in this State was thus stated in State v. Rector, 158 S.C. 212, 155 S.E. 385, 390: 'No one, not even the presiding judge, may invade the secrecy of the grand jury's deliberations, to inquire what influences moved them in their acts, or to ascertain how any member may have voted. So, the trial judge in this case was clearly right when he ruled that he could take no step looking to the obtaining of information as to the number of grand jurors concurring in the indictment, and if the necessary number, who did concur, included one or more of the members who were not registered electors.' See also: 24 Am.Jur., Grand Jury, Section 48 (including Cumulative Supp.); Anno: 127 A.L.R. 289.

The record shows that a True bill was rendered on the indictment against the defendant. The established procedure in this State is for the action of the grand jury to be endorsed on the indictment over the signature of the foreman. The indictment is then presented to the court where, in open court and in the presence of the grand jury, the clerk of court reads the action taken. Opportunity is thus afforded any member of the grand jury to disagree with the correctness of the presentment read by the clerk. There is nothing to indicate that the court deviated from the established procedure in this case.

There is no fact or circumstance intimated in this record which would indicate that the indictment was not the result of the agreement of at least twelve members of the grand jury. Certainly defendant was not entitled to have the grand jury polled to ascertain their individual action and there is nothing to show that the procedure adopted by the court in receiving the presentment of the grand jury did not adequately assure that it had received the assent of the requisite number of jurors. The procedure to be adopted and the inquiry to be made in the reception of the indictment by the court, short of a poll of the grand jury, to assure that the requisite number of grand jurors agreed to the presentment is a matter left to the sound discretion of the trial judge and will not be disturbed in the absence of a clear showing of abuse thereof. None has been shown.

The next questions concern the several grounds upon which defendant moved to quash the indictment.

It is first contended that the indictment should have been quashed on the ground that women were excluded from service on the grand jury which indicted him. Article 5, Section 22, of the State Constitution was amended, effective March 1, 1967, so as to make women eligible for jury duty in this State for the first time. 55 Stat. at Large 66. The relevant statutes were amended on July 3, 1967 to implement and conform to the constitutional amendment. 55 Stat. at Large 895.

Under the provisions of Section 38--52 of the 1962 Code of Laws, the jury box used during the following year is prepared by the Jury Commission in December. Therefore, the grand jury which indicted the defendant on May 22, 1967 was drawn from the jury box which was prepared in December 1966. Section 38--401 et seq., 1962 Code of Laws. That jury box was prepared in accordance with the Constitution and statutes of this State, which, at that time, excluded women from service on juries. However, when the grand jury passed upon the indictment against defendant on May 22, 1967, the Constitution had been amended approximately ninety (90) days prior thereto, on March 1, 1967, making women eligible for jury duty. No change was made in the grand jury, prior to the indictment of defendant, to reflect the change in eligibility of women for jury duty.

There can be no doubt that the grand jury was properly constituted at the time it was drawn, although women were excluded from service thereon, since their exclusion was in accord with the Constitution at that time. State v. Hollman, 232 S.C. 489, 102 S.E.2d 873; State v. Hamilton, S.C., 159 S.E.2d 607.

Defendant contends however that, although legally constituted at the time it was drawn, the subsequent constitutional change making women eligible for jury duty rendered the grand jury illegal at the time it acted upon the indictment against him, since it was not reconstituted to include women among the eligible jurors.

We do not think that the subsequent change of the Constitution would act to make illegal the grand jury which was legally constituted at the time it was drawn. Changes as fundamental as here involved cannot be made overnight, and such a change, generally, is timely made so as to deprive a defendant of no constitutional right, if done in accordance with the usual statutory procedures for selecting and drawing juries. See: Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Jackson v. State of Texas, 161 Tex.Cr.R. 464, 278 S.W.2d 310; York v. United States, 8th Circuit, 167 F.2d 847; State v. Litteral, 227 N.C. 527, 43 S.E.2d 84.

Defendant next argues that the indictment should have been quashed because the court failed to make a timely appointment of counsel to represent him. He was arrested on November 4, 1966 and on November 6, 1966 was admitted to the South Carolina State Hospital for a mental examination, where he remained for a period of approximately four months. He was released from the State Hospital on March 8, 1967 and was thereafter kept in custody in the Lexington County jail until his trial on September 6th and 7th, 1967. While in the State Hospital defendant requested to see a lawyer and while in jail requested that a lawyer be appointed to represent him. However, a lawyer was not appointed until May 9, 1967, approximately six months after his arrest. The record contains no explanation for the failure to sooner do so.

Although there is no explanation of the failure to sooner have counsel appointed for defendant, there is no showing that such delay deprived defendant of a fair and impartial trial.

Counsel was appointed to represent defendant on May 19, 1967. He was indicted by the grand jury on May 22, 1967. A preliminary hearing was demanded on May 24, 1967. The case was called for trial on May 26th and a continuance...