State v. Scarborough

• Decision Date: 30 May 1871
• Citation: 2 S.C. 439
• Parties: THE STATE v. ORLANDO C. SCARBOROUGH.
• Court: South Carolina Supreme Court

2 S.C. 439

THE STATE v. ORLANDO C. SCARBOROUGH.

Supreme Court of South Carolina.

May 30, 1871

Where one of the juries is charged with an indictment for an assault and battery, and after the evidence and argument have been heard, one of the jurymen absents himself from the panel, a member of the other jury who heard the evidence and the argument cannot be substituted in his place against the consent of the defendant.

If such substitution be made, and defendant be found guilty, the judgment will be arrested.

BEFORE RUTLAND, J., AT DARLINGTON, FEBRUARY TERM, 1871.

Motion in arrest of judgment. The facts upon which the motion was based, and the ground thereof, are stated in the judgment of the Court.

Warley , for the motion, cited State vs. McKee , 1 Bail. 651, 654; Bostick's case, cited in 1 McC 254; Edwards ' case, 2 N. & McC., 17; State vs. Starling , 15 Rich. 134; Creiger vs. Bunton , 2 Stro. 491; 2 Hale P C., 295, 296; Coke on Lit., (Thomas,) ch. 9, p. 457; 2 Bish. C. L., § 670, 673; United States vs Haskell , 4 Wash. C. C., 402; Garrat vs. Garrat , 4 Yeates 244; People vs. Damon , 13 Wend. 351; State vs. Williams , 3 Stew. 454; 5 Bac. Abr., 335, Title Juries, (C.,) 369, (Note,) 371, (G.); Rex vs. Edwards , Brit. C. Cases, 224; Rex vs. Deleany , 3 Ib. 88.

Shaw , Solicitor, contra.

OPINION

MOSES C. J.

The motion is in arrest of judgment.

It appears from the brief that the defendant, with one John E. Andrews, was indicted for assault and battery. The trial progressed, and, on the conclusion of the argument of the defendant's counsel, the Court adjourned to the next morning. On re-assembling, it was discovered that one of the jury charged with the case was absent. After a little delay, on his non-appearance, the Judge directed that a member of jury No. 2, who had heard the testimony and the argument of the counsel for the defendant, should be sworn, and directed to take his place on the panel to which the cause had been committed. This was done, against the objection of the counsel, who insisted that the jury should be discharged, and the indictment submitted to another jury. The trial proceeded, and resulted in the acquittal of Andrews, and the conviction of this defendant, who moved the Circuit Court in arrest of judgment, on the grounds now submitted for the motion here, the said Court having dismissed it.

There is no right pertaining to the citizen which the Court watches with more jealous care than that which secures to him, when charged with a violation of the public law, a fair and impartial trial by jury in conformity with form and manner which have regulated it for centuries. The least infringement of these is looked to with sad forebodings as the precursor of changes in the administration of the law, which, if not checked, may impair the safeguards by which his life, liberty, character, and property are protected. Our people have persisted in preserving it with all its ancient privileges and prerogatives, and the form of jury trial, as it now exists, has outlived the changes wrought in the government itself by the revolution which converted the Colonies into independent States.

While they have been willing, to a large extent, to realize the necessity of varying the forms of action, the rules of evidence, the punishment for crime, they have adhered almost with a reverential devotion to all the incidents which have attached to trial by jury from a period beyond which the memory of man runneth not.

The tribunal which is to pass upon the guilt or innocence of a party charged with an offense " against the peace and dignity of the State," and known as the " " jury," is to be composed of twelve men. " It can be no more, and no less than twelve, and all must assent to the verdict." -2 Hale , 161. Here a jury had been sworn well and truly to try the defendant. Each member assumed the oath as of the panel charged with the cause committed to it, and by it the verdict was to be rendered. If the absence of a single one justified the substitution of another in his stead by the presiding Judge, the same rule would apply if...