State v. Suber

• Decision Date: 30 May 1911
• Citation: 71 S.E. 466,89 S.C. 100
• Parties: STATE v. SUBER.
• Court: South Carolina Supreme Court

71 S.E. 466

89 S.C. 100

STATE v. SUBER.

Supreme Court of South Carolina

May 30, 1911

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

"To be officially reported."

Nannie Lee Suber 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, and to be fully informed, of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to be fully heard in his defense, by himself or by his counsel or by both." The presiding judge had the discretionary power, not only under the statute, but at common law, to order the jury to view the premises. "The court in its discretion may authorize the jury, properly attended, to go and examine-- that is, view--the place of the offense, as a help to understanding the evidence. It was formerly supposed that, in a criminal case, this could be only by mutual consent. But the modern practice leaves it wholly within the discretion of the court. It may be at any appropriate stage of the trial; in one case, the jury asked it after the judge had summed up the evidence, and it was granted. It is the defendant's right to be present if evidence is given, perhaps at all events; but he may waive this right, either expressly or by the implication of declining, or even not asking to go. The court, in granting or refusing the view, will be governed mainly by the special circumstances; and, in granting it, will take the proper steps for the care of the jury." 1 Bishop's New Criminal Procedure, 965. State v. Ballew, 83 S.C. 82, 63 S.E. 688, 64 S.E. 1019 (reported in 18 Am. & Eng. Ann. Cas. 569); Rodgers v. Hodge, 83 S.C. 569, 65 S.E. 819 (reported in 18 Am. & Eng. Ann. Cas. 729). " The cases are divided upon the question, whether the purpose of the view is to furnish new evidence, or to enable the jurors to comprehend more clearly, by the aid of visible objects, the evidence already received. The latter proposition is well sustained, and seems more consistent with the conservative theories, on which the rules of procedure and jury trials are based; but the contrary theory, holding that the purpose of a view is to supply evidence, is supported by good authorities." 12 Cyc. 537; 11 Enc. of Law, 540. "Concerning a view of the premises made by the jury, in the absence of the judge and the defendant, there is great diversity of opinion found in the decided cases, based upon different grounds. It is held by high authority that the judge and officers of the court, as well as the defendant, must be present; that a view is taking testimony in the case, and, when made in the absence of the defendant, is in violation of his constitutional right of being confronted by the witnesses against him; and that such right cannot be waived. Other authorities, of equal high standing, and with greater...