State v. Simon
| Decision Date | 04 December 1923 |
| Docket Number | 11353. |
| Citation | 120 S.E. 230,126 S.C. 437 |
| Parties | STATE v. SIMON. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.
Metry Simon was convicted of receiving stolen goods, and he appeals. Reversed, and a new trial ordered.
Cole L Blease, of Columbia, for appellant.
A. F Spigner, Solicitor, of Columbia, for the State.
The defendant was convicted of receiving stolen goods. There was evidence tending to establish that the defendant, a storekeeper in the environs of Columbia, bought from a negro boy, for the sum of $12, a stolen case containing 10,000 cigarettes, of the value at wholesale of $64. His appeal raises, substantially, the points which will be stated and considered in the following order.
The first point upon which a reversal is sought is thus stated:
"Because the defendant was not given a fair and impartial trial, as guaranteed by the Constitution, in that (a) neither he nor his attorney had choice in the selection of any jurors; (b) that the haste in the trial of the case forbade the defendant from preparation, the magistrate stating the next term of the court, when court was then in session, thereby misleading the defendant."
The record fails to disclose any satisfactory actual basis for this assignment of error. The defendant's bail bond or recognizance is not in the record. The only pertinent statement which appears therein as an admitted fact is that "the defendant was called three times at the door, and did not answer, but later appeared with his attorney." From portions of the defendant's testimony, taken in connection with remarks of his counsel on a motion for new trial appearing in the record, we gather, however, that the cigarettes were bought by defendant on Saturday morning; that defendant was arrested on the same day, Saturday afternoon; that he was given a preliminary hearing on the following Monday afternoon, when he was bound over to the "next term" of court; and that he was indicted and brought to trial on the next day, Tuesday, in the court of general sessions which was then sitting and had been in session on the day before when the preliminary was held. If the facts were as indicated, it is sufficiently apparent that this was certainly not a case of justice moving with leaden feet. In disposing of this ground on the motion for new trial, the circuit judge said:
It further appears from the record that all witnesses for the state were cross-examined by defendant's counsel. It does not appear that, prior to the verdict, any objection was made to proceeding with the trial, or any appropriate motion entered upon the ground that defendant was taken by surprise, or that he had not had time to prepare his defense, or that material witnesses were absent, or that he had been deprived of a substantial right in not having opportunity to challenge jurors. The offense charged was a misdemeanor, for which defendant could be legally tried in his absence. State v. Rabens, 79 S.C. 542, 60 S.E. 442, 1110. By appearing and participating in the trial without objection, under the circumstances indicated, we are clearly of the opinion that the defendant waived any right to assert that he had been deprived of due process of law or otherwise subjected to such unjust and oppressive treatment as would vitiate the action of the trial court for either error of law or abuse of discretion.
"The general principle that a party cannot take his chances of a successful issue, reserving vices in the trial, of which he has notice, for use in case of disappointment, is universally recognized and obviously just." State v. Ballew, 83 S.C. 82, 63 S.E. 688, 64 S.E. 1019, 18 Ann. Cas. 569; 16 C.J. 1128, § 2626.
See, also, State v. Rabens, supra.
In the light of that clearly applicable principle, and in the absence of any affirmative showing of injury from surprise, inadvertence, or mistake, upon the motion for new trial, it may not be held that the ruling of the circuit judge was erroneous as a matter of law, or constituted reversible abuse of discretion.
The second point (exceptions 4, 5, and 6), to which attention will be directed, is the contention that the trial court committed error in permitting the jury to render a sealed verdict, without defendant's consent, and in not requiring the jury to be polled in open court when the verdict was formally received and published. At the time the court instructed the jury that a sealed verdict could be found, no objection was interposed by defendant, but the next morning, the jury being in their seats, and having been polled as to attendance by the clerk, defendant's counsel noted an exception to receiving the verdict. The view that the allowance of a sealed verdict and a separation of the jury before its return into court is a mere matter of practice which may be regulated by the courts or by the Legislature without invading any of the guaranteed or essential rights of a person accused of crime, we think, is supported both by reason and by the greater weight of authority. 27 R. C. L. 837, § 5.
"By the most generally recognized practice * * * the allowance of a sealed verdict is within the discretion of the judge, which does not require any agreement of parties or counsel, and may be exercised without their consent." 27 R. C. L. 837, § 5.
The allowance of a sealed verdict in a criminal case involving a misdemeanor is not in conflict with the recognized practice in this state, and is a matter which properly rests in the sound discretion of the trial court. The controlling element in determining the limits of the convenience of jurors and the discretion of the judge is the necessity that the verdict shall not only be fair, unbiased, and free from extrajudicial influences, but beyond reasonable apprehension of danger that it is otherwise. There is no suggestion that the sealed verdict returned and published in the case at bar was not the verdict agreed upon before the separation of the jury, or that the nature of the verdict was in any manner affected by the dispersion of the jury after the verdict was reached .
If defendant desired that the jury be polled for the purpose of affirming the verdict in open court, he should have so requested in apt time. While under the well-settled rule in this state neither party has an absolute right to have the jury polled (State v. Daniel, 77 S.C. 53, 57 S.E. 639, and cases there cited), we have no doubt that where a sealed verdict has been allowed, sound practice requires that such motion to poll the jury at the time of the publication of the verdict should ordinarily be granted. But the motion was not made in this case, and no ground exists for imputing reversible error to the trial court as to a matter upon which no ruling was sought or made. Since the contention of appellant in this aspect of the case is directed to assignment of error in matters which were within the discretionary power of the circuit judge, and as to which no abuse of discretion has been shown, the contention cannot be sustained.
The third point raises a question that is not free from difficulty, viz. whether the rendition of verdict was unduly influenced by the action of the trial judge in notifying the jury after a considerable period of deliberation that they would be kept together at night in the jury room, alleged to be "a close room, unfit for such uses," for a specified time, about 15 1/2 hours, unless an agreement was sooner reached. The point is predicated upon a feature of the trial, which is thus reported in the record:
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