State v. De Young
| Decision Date | 02 January 1947 |
| Docket Number | 15901. |
| Parties | STATE v. DE YOUNG. |
| Court | South Carolina Supreme Court |
Marvin R. Reese, of Greer, J. G. Leatherwood and W. E. Bowen, both of Greenville, for appellant.
Robert T. Ashmore, of Greenville, and Arnold R. Merchant, of Spartanburg, for respondent.
The facts relating to this appeal are taken from appellant's brief; the Solicitor and his associate counsel filed none, and likewise made no oral argument.
Appellant was convicted at the May 1946 term of the Court of General Sessions for Greenville County of the crime of assault and battery with intent to kill. Before sentence the court refused motion for a new trial made upon the ground that one of the trial jurors was disqualified because he had previously moved his residence from Greenville to the adjoining county of Spartanburg. At the convening of the court the presiding judge complied with the provision of Sec 608 of the Code which required that he ascertain that the jurors possessed registration certificates. On the panel was one W. G. Stokes who had registered on October 6, 1944 while a resident of Greenville County but subsequently moved to Spartanburg County where he resided at the time of this jury service.
After completion of the testimony, arguments and charge and when the jury were out, upon their deliberation, an unknown bystander informed appellant's counsel that he thought Stokes lived in Spartanburg County, whereupon counsel passed the rumor to the trial judge who asked the Clerk to check the mileage given by the juror and it was found to correspond with his listed Greenville County address. The result of this cursory investigation convinced counsel that the juror was qualified by residence, and nothing further was done or said about it until after the rendition of verdict when counsel obtained more information (again by chance, when the juror employed him to draw a deed to Spartanburg land) and made the motion for a new trial, from the denial of which this appeal was taken.
The case is controlled by the reasoning and precedent of State v. Amburgey, 206 S.C. 426, 34 S.E.2d 779, and the authorities there cited. It is provided by the old statute which is now section 639 of the Code of 1942, as follows: 'All objections to jurors called to try prosecutions, or actions or issues, or questions arising out of actions or special proceedings in the various courts of this State, if not made before the juror is impaneled for or charged with the trial of such prosecution or action, or issue, or question arising out of actions or special proceedings, shall be deemed waived; and if made thereafter shall be of none effect.'
It was early held that the statute applies only to disqualifications of jurors which were known to the complaining party or his counsel before trial or unknown and such ignorance was due to the lack of diligence. Where the disqualification relied upon might have been discovered by the exercise of ordinary diligence, it affords no excuse for failing to make the objection in due season. Otherwise, the party would be permitted to take advantage of his own negligence. State v. Robertson, 54 S.C. 147, 31 S.E. 868.
In the case now before us the appellant or his counsel could have quite easily ascertained that the juror, although duly registered in Greenville County, had moved across the line into Spartanburg County before summoned to jury duty. Little effort would have been required; certainly the failure to make effective inquiry was not the exercise of due diligence. Moreover, inquiry was not diligently pursued when counsel first accidently came upon the information. He was thereupon satisfied by the knowledge that the juror had stated the mileage from his home to the Court House which corresponded with the residence given in his registration certificate. No effort or motion was made to further verify the fact, which could have conveniently been done by the questioning of the juror by the court or counsel. The court could have easily been asked to call him from the jury room for that purpose.
It is contended that it would have been embarrassing and possibly prejudicial for counsel to have asked at that stage for interrogation of the juror. A like argument was made in State v. Gregory, 171 S.C. 535, 172 S.E. 692, and upon examination was found to be without merit. There it was contended that to request the court to inquire concerning the registration of the jurors would have incurred the risk of offending them and thereby endangering the cause of the defendants. But it was pointed out by the court that such position was untenable. And we think it equally so here.
Thus appellant and his counsel were wanting in diligence in the first place in their failure to ascertain the disqualifying change of residence of the juror before trial and, in addition, when the information fortuitously came to them during the course of the trial, they did not pursue it. They could not in that manner take their chances upon a favorable verdict and complain after an unfavorable one. The appeal must be dismissed.
Judgment affirmed.
I am persuaded that the judgment of the lower Court should be affirmed. A brief reference to the facts disclosed in the affidavits presented by appellant on the motion for a new trial may be helpful in determining the question involved on this appeal. No affidavits were offered by the State.
The Greer Mill and the Victor Mill are units of the Victor-Monaghan group of cotton mills. Both plants are located at or near the town of Greer. The entire village of the Greer Mill is located in Greenville County, while that of the Victor Mill is located in Spartanburg County. According to appellant's affidavits, the juror in question, W. G. Stokes, was never employed at the Greer Mill and never resided in the village of this plant, but for a number of years prior to December, 1945, had been employed by the Victor Mill and lived in that village. One of the employees of the Victor Mill stated in his affidavit that during the fall of 1945, he rented to Stokes a 35 acre farm owned by him near the town of Wellford in Spartanburg County; that thereafter in December, 1945, Stokes moved to this farm, has since resided there, and has recently agreed to purchase same; and that at the time of the trial of this case in May, 1946, Stokes was working at a small cotton mill near Wellford. Mr. Reese, one of appellant's attorneys, stated in his affidavit that Stokes called at his office on the day after appellant was convicted for the purpose of having him prepare a deed to this property.
Although counsel for appellant state in their brief that after registering in Greenville County on October 6, 1944, Stokes moved from Greenville to Spartanburg County, all of appellant's affidavits are to the effect that for a long period of years this juror had resided at Victor Mill in Spartanburg County. Therefore, according to these affidavits, the change of residence was not from Greenville County to Spartanburg County, but was from one point in Spartanburg County to another in the same county. Mr. Reese, leading counsel for appellant, resides and has his office in the town of Greer near which both the Greer and Victor Mills are located. It is a common practice after the jury list is published for counsel to inquire as to the occupations of those drawn for jury service and the sections of the county in which they reside. The slightest inquiry by appellant's counsel would have disclosed that this juror was working at the time he was drawn for jury service either at the Victor Mill or at a small mill near Wellford, both of which are located in Spartanburg County. The information thus obtained would naturally lead to the further inquiry as to whether the juror was residing in the county where he was employed.
In State v. Jones, 90 S.C. 290, 73 S.E. 177, a new trial was sought upon the ground that one of the jurors at the time of the trial was more than 65 years of age and, therefore, disqualified to serve under the provisions of the Constitution. The Court held that if the juror was over the prescribed age, such fact, although not previously known to the defendant or his counsel, should in the exercise of due diligence have been discovered by counsel before the verdict was rendered.
The fact that the juror registered in Greenville County on October 6, 1944, would indicate that at that time he resided in Greenville County, although the affidavits of appellant are to the effect that he was then a resident of Spartanburg County. It is possible, though not probable, that the juror was confused as to the location of the county line. Mr. Reese states in his affidavit that the juror was requested but refused to make an affidavit to be used on the motion for a new trial. However, no subpoena was issued or other effort made to require him to testify at this hearing. If we assume contrary to appellant's showing, that this juror resided in Greenville County in October, 1944, it does not necessarily follow that by thereafter moving to Wellford in Spartanburg County he intended to abandon his residence in Greenville County. Section 2279 of the 1942 Code prescribes the method of obtaining a new registration certificate when an elector moves from one county to another. There is no showing that this juror ever made any effort to get a new registration certificate in Spartanburg County as authorized by this Section. The fact that the juror refused to make an affidavit when requested to do so by appellant's counsel rather leads to the impression that he disagreed with appellant's contention as to...
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