State v. Stephens
| Decision Date | 03 March 1879 |
| Docket Number | CASE 689. |
| Citation | 11 S.C. 319 |
| Parties | THE STATE v. JOSEPH STEPHENS. |
| Court | South Carolina Supreme Court |
1. Defects in the panel, or in individual jurors, not apparent on the record and requiring proof aliunde , cannot be considered on appeal, unless objection was made and exception taken, before the swearing of the jury.
2. The same defects not objected to, but apparent upon the record may be considered on a motion in arrest of judgment; and in the Circuit Court, irregularities in the venire facias , or in the drawing, summoning or impaneling of jurors, by which the party has been prejudiced, may be objected to at any time before the verdict is returned.
3. The Circuit Court has no power to issue a venire for talesmen. State v. Williams , 2 Hill 381, approved .
4. A Circuit judge has no power to vacate the seat of a juror who has been sworn in a criminal case, on proof of facts occurring beyond the presence of the court.
Before ALDRICH, J., at Edgefield, June Term, 1878.
The defendant was indicted for murder. There was a deficiency of twenty jurors, and the " five-mile apartment" being exhausted the deficiency was ordered to be supplied from the " other apartments." From the affidavit of the jury-commissioner, made after the trial, it appeared that the board in drawing from the other apartment did not confine themselves to the names of such persons as lived within five miles of the court-house. The sheriff summoned these jurors by verbal order. No venire was issued. Before the panel was complete, a recess was taken, during which a juror sworn in the case, was heard to say that he was opposed to hanging anybody, because he himself might be hanged some day. When the recess was over, this was reported to the court; and the juror, being interrogated by the judge, repeated what he had said. The juror was not re-sworn on his voir dire , but was discharged, to which appellant objected on the ground that it was too late to raise any objection to the juror. The appellant exercised his right of twenty challenges, and made no application for another.
After the testimony was closed, the appellant's attorney raised, at the beginning of his argument, the point that the court had no right to pass the order for the twenty additional jurors; and if so, that they should be such as lived within five miles of the court-house, and that no venire was issued for them. These objections were deferred and made afterwards in arrest of judgment, together with the objection as to discharging the juror; and they were severally overruled.
The defendant was convicted and sentenced to be hanged.
An appeal was taken to this court upon the following grounds:
1. That the court erred in overruling motion to arrest judgment in the said case, when the said motion was made upon the following grounds, to wit: The jury that tried the said case was not drawn, summoned and impaneled according to law in such cases made and provided.
2. That after a juror had been called and not objected to by either the state or the prisoner, and sworn to try the case, he was ordered to stand aside, without being examined upon his voir dire , and the prisoner was, under the circumstances, allowed only twenty challenges.
Mr. B. W. Bettis, Jr. , for appellant.
Mr. Solicitor Abney , for respondent.
The appellant alleges irregularities in the drawing, summoning and impaneling of the petit jury. It does not appear that there was any challenge to the array or to the poll, but the jurors were sworn without objection. So far as the present objection is raised on matters not appearing on the record, and such as could only be brought to the notice of the court by proof beyond the record of the facts alleged, it cannot be considered on appeal, for the want of objection and exception in due time. It is too late to allege such defects, either in the panel or in individual jurors, after the swearing of the jury. State v. Williams , 2 Hill 381; King v. Hunt , 2 B. & Ald. 430; Queen v. Hepbam , 7 Cranch 290 Amherst v. Hadley , 1 Pick . 39.
Where the defect appears upon the record, it may be the subject of a motion in arrest, though not previously objected to, as where there is a fatal defect in the venire , ( State v. Dozier , 2 Spears 211; State v. Williams , 1 Rich. 188; ) so where a defect in the authority of the court ordering the drawing appears on the record. State v Jennings , 15 Rich. 42; State v. Pratt , 15 Rich. 47. Relief may, however, be granted by the court of original jurisdiction, although such objection was not taken in time, but that relief is in the discretion of the court, and will not be granted unless it appears that the party has been prejudiced by the matters complained of. King v. Hunt , 2 B. & Ald. 430; Hill v. Yates , 12 East 229. In Kennedy v. Williams , 2 N. & McC. 79, a new trial was granted where the objection to a juror could not be taken in due time, as the knowledge of the...
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