State v. Suber

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: GARY
• Citation: 89 S.C. 100,71 S.E. 466
• Parties: STATE. v. SUBER.
• Decision Date: 30 May 1911

89 S.C. 100
71 S.E. 466

STATE.
v.
SUBER.

Supreme Court of South Carolina.

May 30, 1911.

1. Criminal Law (§ 918^*)—New Trial—Objection Waived.

Any right of objection, because of the judge not accompanying the jury when it viewed the place of the crime, was waived, if defendant's counsel, being aware thereof before rendition of the verdict, did not complain to the court till he moved for a new trial.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2163-2196; Dec. Dig. § 918.*]

2. Criminal Law (§ 651*)—Trial—View by Jury—Discretion.

Under Civ. Code 1902, § 2950, providing that the jury in any case may, at the request of either party, be taken to view the place in question or pertaining to the controversy, when it appears to the court that such view is necessary to a just decision, the presiding judge has discretionary power to order the jury to view the place of the crime.

[Ed. Note.—For other cases, see Criminal Daw, Cent. Dig. §§ 1516-1519; Dec. Dig. § 651.*]

3. Criminal Law (§ 651*)—Trial—View by Jury—"Taking of Testimony."

In a constitutional sense, the viewing by the jury of the place of the crime is not the "taking of testimony."

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1516-1519; Dec. Dig. § 651.*]

4. Criminal Law (§ 662*)—Trial—View by Jury—Right to be Confronted with and to Cross-Examine Witnesses;

Defendant is not, by the viewing by the jury of the place of the crime, deprived of the right to be confronted with or to cross-examine any witness in the case.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1538-1548; Dec. Dig. § 662.*]

5. Criminal Law (§ 634*)—Trial—View by Jury—Absence of Judge.

It cannot reasonably be supposed that defendant's rights would in any respect be prejudiced by the absence of the judge when the jury merely viewed the place of the crime.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1461-1464; Dec. Dig. §

[71 S.E. 467]

Appeal from General Sessions Circuit Court of Richland County; W. T. Aycock, Special Judge.

"To be officially reported."

Nannie Lee Suher was convicted of murder, and she appeals. Dismissed.

Frank G. Tompkins, for appellant.

W. Hampton Cobb, Sol., for the State.

GARY, A. J. The defendant was indicted for murder, and found guilty, with a recommendation to mercy. From the sentence imposed upon her, she appealed to this court.

The exceptions raise the question, whether there was error, on the part of his honor the presiding judge, in refusing the motion for a new trial, made on the ground that the presiding judge did not accompany the jury when it was sent by him to view the place where the homicide was committed. There is, however, a preliminary question, to wit, whether the appellant waived the right to raise this question by failing to interpose such objection before the verdict was rendered. It is true the record states that the defendant's counsel was not notified that the presiding judge would not accompany the jury when the premises were viewed, but it does not appear that the appellant's attorney was not aware of such fact until the rendition of the verdict. If the appellant's attorney had knowledge of this fact before the verdict was rendered, then the case comes within the principle announced in State v. Ballew, 83 S. C. 82, 63 S. E. 688, 64 S. E. 1019. In that case the jury, while inspecting the locality, made certain experiments in the presence of the defendant's attorney, who failed to inform the court of such fact, until he made a motion for a new trial. In refusing the motion for a new trial the court said: "The defendants, with full knowledge of the misconduct of the jury, having chosen not to complain to the court, but rather to take the risk of a verdict in their favor, could not afterwards, because the verdict was against them, have a new trial on this ground. 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."

But waiving this objection, the exceptions cannot be sustained. Section 2950 of the Code of Laws of 1902, provides that "the jury in any case may, at the request of either party, be taken to view the place or premises in question, or any property, matter, or thing pertaining to the controversy between the parties, when it appears to the court, that such view is necessary to a just decision, " etc. Section 18, art. 1, of the Constitution, is as follows: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,...