State v. Toland

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: McIver
• Citation: 36 S.C. 515,15 S.E. 599
• Parties: State v. Toland. Same v. Dearing.
• Decision Date: 04 July 1892

15 S.E. 599
36 S.C. 515

State
v.
Toland.
Same
v.
Dearing.

Supreme Court of South Carolina.

July 4, 1892.

Jury—Summoning — Exemption — Disqualification—Special Deputy Sheriffs — Eligibility of Minors.

1. Where the return of a writ of venire facias bears date the first day of the term, it will be presumed to have been made before the opening of court on that day, and so regular, under Gen. St. § 2246, requiring such return to be made "before the opening or time of holding court."

2. Gen. St. § 2246, requiring the sheriff to summon each juror by reading to him the venire, "with his indorsement thereon of his having been drawn, " refers to the indorsement to be made by the sheriff in the schedules attached.

3. Where the sheriff appoints a special deputy to execute certain papers, such appointment need not be evidenced by writing indorsed on or attached to the papers.

4. As the special deputy of a sheriff acts as an agent of the sheriff, rather than as an officer, such position may be filled by a minor.

5. Exemption from jury duty does not disqualify one from acting as a juror.

6. Under Gen. St. § 2257, providing that, in case of an irregularity in drawing a jury, it shall be lawful for the resident circuit judge "to issue his order to the board of jury commissioners * * * to proceed to draw jurors, " where the commissioners are served with a copy of such an order, and draw jurors as required therein, they are presumed to have acted under the order, and the drawing is valid, though previous to the drawing they were also served with a writ of venire facias, requiring such drawing to be made.

Appeal from general sessions circuit court of Edgefield county; James Aldbich, Judge.

Press Toland, alius Preston Toland, and Augustus Hearing ware separately convicted of murder, and each appeals. Affirmed.

Folk & Folk, for appellants.

P. H. Nelson, for the State.

McIver, C. J. These two cases, involving precisely the same questions, were heard and will be considered together. In both of the cases the defendants, upon being upon their trial for murder, moved to quash the venire, both of the grand jury, which found the bills of indictment, and of the petit jury, from which the jurors were impaneled to try the cases. The motions to quash being overruled in both of the cases, the trials proceeded, and resulted in convictions of murder in both of the cases, whereupon both defendants moved in arrest of judgment, and for a new trial, which motions were overruled, and the defendants duly sentenced. They now bring these appeals upon the several grounds set out in the record, which may be stated substantially as follows: First. Because of error in refusing to quash the venires for grand and petit jurors, upon the ground that the sheriff failed to make return of the same before the day fixed for the opening of the 'court. Second. Because of error in holding that the grand and petit jurors whose names appear in Schedule 1 were properly and legally served. Third. Because of error in holding that the grand and petit jurors whose names appear in Schedule 2 were legally summoned. Fourth. Because of error in holding that the grand and petit jurors summoned by James D. Outz and W. G. Outz were legally summoned when the said venires and returns did not show that the persons named were the legally constituted deputies of the sheriff. Fifth, sixth, and seventh. Because of error in holding that a minor could legally act as the deputy of the sheriff in serving the jurors. Eighth. Because of error in holding that 36 good and lawful men had been drawn and summoned, when it appeared that 3of the persons so drawn and summoned were exempt from jury duty. Ninth, tenth, and eleventh. Because of error in holding that the persons drawn for grand jurors were properly drawn by the board of jury commissioners. Twelfth. Because of error in ordering and allowing the deputy clerk of the court to make a certificate upon the original order of Judge Kershaw that a copy of said order had been served upon the board of jury commissioners, after objection made by defendant's counsel, and pending the argument for a new trial in said case. The thirteenth ground, having been abandoned, need not be stated, fourteenth. Because of error in holding that the sheriff had made his returns as to the persons named in Schedule 3 of said venires for grand and petit jurors, when said returns were as to the persons named in Schedules 1 and 8 only, and there was no return or certificate as to the persons named in Schedule 8. Fifteenth. This ground is of too general a character to require any attention.

For a proper understanding of some of these grounds of appeal, a brief statement of the facts appearing in the "case" will

[15 S.E. 600]

be necessary as we proceed to consider each of these grounds seriatim.

As to the first ground, the facts are that the court for Edgefield county opened on the 9th day of November, 1891, and the sheriff's return alluded to in this ground bears date on that day; but there is no evidence that such return was made before or after the opening of the court on that day. Hence upon the well-settled principle that, in the absence of evidence to the contrary, it will be presumed that a. public officer has done his duty, we are bound to presume that this return was made before the opening of the court on that day, and therefore this ground cannot be sustained. The contention on the part of the appellants that the court takes no notice of fractions of a day, while true in some instances, does not apply here, for the statute (section 2246, Gen. St.) does...