V. Robertson.

• Decision Date: 04 January 1899
• Citation: 54 S.C. 147,31 S.E. 868
• Parties: v. ROBERTSON.
• Court: South Carolina Supreme Court

31 S.E. 868

54 S.C. 147

v.ROBERTSON.

Supreme Court of South Carolina.

Jan. 4, 1899.

Criminal Law — New Trial — Instructions — Harmless Error—Jurors—Disqualification—Affidavits—Review.

1. Where the jury renders a verdict of manslaughter, error predicated on an alleged erroneous charge as to presumption of malice cannot be sustained.

2. Where a juror is examined on a voir dire, and after such examination the circuit judge determines that he is a competent juror, such determination, being on a question of fact, cannot be reviewed.

3. Where a defendant fails to use the means afforded by law to ascertain the qualifications of jurors, it is not error to refuse a new trial based on the alleged ground that a juror had served on a former trial of the case, which fact was unknown to defendant or his counsel until after the trial.

4. The court will not consider a motion for a new trial based on an affidavit of a juror who sat as a juror in a former trial of the case, showing how he voted on such former trial.

Appeal from general sessions circuit court of Greenville county; Ernest Gary, Judge.

"W. W. Robertson was convicted of manslaughter, and he appeals. Affirmed.

J. A. Mooney, for appellant.

U. X. Gunter, Asst. Atty. Gen., for the State.

McIVER, C. J. The defendant was indicted for murder, and was convicted of manslaughter, with a recommendation to mercy; and from the judgment rendered upon such verdict the defendant appeals, upon the following grounds: "(1) That his honor, the presiding judge, erred in charging the jury as follows: 'Now, when the killing is in a quarrel and encounter if the facts show that it arose out of the misconduct of the defendant, the' law says that malice on the part of the defendant is inferred.' (2) That the presiding judge erred in not granting defendant's motion for a new trial: (a) It having been shown and admitted that the juror Cunningham had served as a petit juror in the former trial of this case, and which fact was unknown to the defendant and his counsel until after the trial herein; (b) it appearing by affidavit that the said juror voted at the former trial of said case for a verdict of manslaughter." In the "case" we find the following statement: "It is admitted that at the term of the court preceding that at which the defendant was tried and convicted of manslaughter, and from which this appeal is taken, the said defendant was tried under said indictment, and a mistrial was had; that at said trial the above-named juror, H. B. Cunningham, was a member of the panel, and voted for a verdict of manslaughter; that, when said juror was called and examined upon his voir dire at the last trial of said cause, neither the defendant nor his counsel knew that he had served on the jury at the former trial, and did not ascertain that fact until after the trial and verdict, when the defendant's counsel was informed of it by an officer of the court; that the above facts were made to appear by affidavit, and a motion for a new trial was duly made before the presiding judge upon that ground, among others, and said motion was refused, and the defendant sentenced to two years in the state penitentiary at hard labor. The evidence was the same at both trials." It also appears from the "case" that when the juror Cunningham was examined on his voir dire the following occurred: "Q. Have you formed or expressed an opinion as to the guilt or innocence of the defendant, Robertson? A. Yes, sir. Q. Upon what was the opinion based? A. Prom what I heard of the evidence. Q. Notwithstanding that opinion, do you think you can give the prisoner a fair and impartial trial according to the law and the evidence as you may hear here? A. Yes, sir; I think so. Q. Have you any bias or prejudice against the prisoner at the bar? A. No, sir." Whereupon the juror was sworn. It does not appear that the prisoner had exhausted his peremptory challenges before reaching this juror, nor dies it appear that he challenged the said juror.

Inasmuch as the appellant was convicted of manslaughter only, which wholly excludes the idea of malice, it is very manifest that the first ground of appeal cannot be sustained; for, even if the proposition of law ex cepted to be erroneous, it is quite certain that such error was entirely harmless, as the verdict demonstrated that the jury did not believe that the killing was actuated by malice. Hence any inquiry into the correctness of the proposition of law in the judge's charge to which error is imputed would be purely speculative, and cannot, therefore, be properly pursued in this case.

The second ground of appeal presents questions of an important character, which demand the serious consideration of this court. It must be remembered that in the present constitution, unlike that of 1868, it has been declared, in mandatory terms, as follows, "The petit jury of the circuit courts shall consist of twelve men, all of whom must agree to a verdict in order to render the same, " and further that "each juror must be a qualified elector under the provisions of this constitution, between the ages of twenty-one and sixty-five years, and of good moral character." Const, art. 5, § 22. Hence, when the fact has been ascertained by the proper authority, invested with jurisdiction to determine, that some one or more of the body of persons organized as a jury did not possess the qualifications required by the constitution, their verdict must be set aside, upon the ground that it was not the verdict of a constitutional jury. Garrett v. Weinberg (S. C.) 31 S. E. 341. But in the case now under consideration the objection to the juror Cunningham was not based upon the ground of lack of any one of the qualifications prescribed by the constitution, and hence the decision in the case just cited does not conclude the inquiry. Here the objection to the juror in question was based upon the ground, not that he was disqualified from serving as a juror in any cause, but that he was disqualified from serving as such in this particular case, because of the fact that he was not "indifferent" (as it is termed in the statute) as between the parties to this case, by reason of the fact that he had served as a member of the jury to which this case had been committed at the preceding term of the court, when the jury failed to agree, and a mistrial was ordered, and had then formed and expressed an opinion as to the guilt or innocence of the defendant. Every fair-minded person will readily recognize the importance of having the jury to whom a case is submitted for trial composed of persons who, as far as practicable, are free from...