State v. Stephens
| Decision Date | 24 March 1880 |
| Docket Number | CASE 846. |
| Citation | 13 S.C. 285 |
| Parties | STATE v. STEPHENS. |
| Court | South Carolina Supreme Court |
1. A party convicted of murder having moved this court in arrest of judgment, and this court having, upon that appeal, ordered a new trial, the Circuit judge at the second trial properly overruled a plea of autrefois convict .
2. When one convicted of murder is granted a new trial, the second trial may proceed upon the same indictment, and there is no force in the objection that the verdict and sentence in the first trial, written on the back of the indictment, will be read by the second jury.
3. A remittitur which orders a new trial, in effect sets aside the verdict and judgment appealed from.
4. It is not necessary that thirty-six jurors should be present at the commencement of a trial.
5. The state may direct a juror to stand aside until the panel is exhausted. [a1]
Before WALLACE, J., Edgefield, June, 1879.
This case having been once before this court, will be found reported in 11 S. C. 319. It will be there observed that the defendant appealed from an order overruling a motion made in arrest of judgment, and that this court directed a new trial. The remittitur , sent down by the clerk of the Supreme Court, read as follows:
Defendant objected to a trial upon the grounds, (1) that as appeared by the endorsement of the verdict and sentence on the indictment, he had already been convicted, and he filed a formal plea of autrefois convict; (2) that thirty-six jurors were not present. Both objections were overruled, and defendant excepted. The state ordered jurors to stand aside who were re-called when the panel was exhausted; to this the defendant excepted. The defendant was found guilty. He then submitted a motion in arrest of judgment, upon the ground that the record showed a previous conviction, and there was no evidence before the court to show that such former judgment had ever been arrested, or that a new trial had ever been ordered. The motion was refused and defendant was sentenced to be hanged. He appealed to this court, renewing here the objections taken below.
Messrs. B. W. Bettis and Arthur Tompkins , for appellant.
Mr. Solicitor Abney , contra.
The first exception embodies the proposition that the defendant, having been once convicted of murder under the present indictment, and a new trial having been granted in invitum by this court, the atttempt to subject him to a second trial under the indictment, was, in effect, putting him in jeopardy of his life twice for the same offence.
Section 18, Article I. of the constitution, declares that " no person after having been acquitted by a jury, shall again, for the same offence, be put in jeopardy of his life or liberty." As the prisoner never has been acquitted of the offence charged in the indictment, this clause has no application to his case. If under any circumstances granting to a person under conviction a new trial could be regarded as depriving him of any right of defence, even where such new trial was granted in invitum , still that is not the present case. The judgment of this court granting such new trial was made upon an appeal by the prisoner, and, therefore, must be regarded as made at his demand, whether the appeal prayed for a new trial or that the judgment might be arrested. An appellant asking for relief of a certain character must be regarded as asking for relief of a...
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