State v. Mittle , 120 S.C. 526 ( 1922 )

I concur in the opinion of Mr. Justice Cothran. After a careful scrutiny of the appeal record and mature consideration of the assignments of error, I have been unable to reach the conclusion that prejudicial error of law was committed.

The contention so strongly urged in argument that the trial Judge committed prejudicial error in failing to sustain the defendant's objection to the juror, W.D. Blanton, has been accorded especial attention. The juror, Blanton, did not sit upon the jury that tried the defendant. He was excluded by the peremptory challenge. It is not to be denied that the right to peremptory challenge is a valuable one, and that there would have been reversible error if defendant had been improperly forced to challenge peremptorily a juror who should have been excluded for cause. But the constitutional right of a defendant charged with crime to an impartial trial by jury is necessarily subject to reasonable regulation by the legislative power. State v. Wyse,32 S.C., at page 55, 10 S.E., 612. The statutes regulating the right of a defendant in a criminal cause to obtain an impartial jury are those embodied in Section 82, Criminal Code of 1912, providing for peremptory challenges, and in Section 4045, Civil Code of 1912, providing for the examination by the trial Court of any person called as a juror as to bias or prejudice in the cause, etc. The latter section provides that —

"If it appears to the Court that the juror is not indifferent in the cause, he shall be placed aside as to the trial of that cause, and another shall be called."

The statutory method thus prescribed for securing an impartial jury is a combination of (1) the peremptory challenge and (2) of the challenge for cause after the examination of the juror on his voir dire. But in construing the statute (now Section 4045, Civil Code of 1912) this Court has repeatedly held that it was the intent of the Legislature to invest the Circuit Judge with the exclusive power to determine the juror's competency as a matter of fact, and that "his determination of this question of fact cannot be reviewed by this Court. Mr. Chief Justice McIver inState v. Robertson, 54 S.C. 152; 31 S.E., 868. SeeState v. Dodson, 16 S.C. 453; State v. Williams, 31 S.C. 238;98 S.E., 853; State v. Merriman, 34 S.C. 16; 12 E., 619; State v. James, 34 S.C. 49; 12 S.E., 657;State v. Haines, 36 S.C. 504; 15 S.E., 555; Simsv. Jones, 43 S.C. 91; 20 S.E., 905; State v. Williamson,65 S.C. 244; 43 S.E., 671. It is true the Court has in other cases expressly recognized that it is within the province of this Court to correct an abuse of discretion on the part of the Circuit Judge in the exercise of the power thus delegated. State v. Coleman, 20 S.C. 449; State v.Murphy, 48 S.C. 1; 25 S.E., 43; State v. Summers, 36 S.C. 479;15 S.E., 369; State v. Milam, 65 S.C. 321;43 S.E., 677; State v. Bethune, 85 S.C. 143;67 S.E., 466; State v. Sanders, 103 S.C. 220; 88 S.E., 10. The only case cited by appellant, however, in which this Court has held that the Court below was guilty of an abuse of discretion, is the case of State v. Sanders, supra. The nature of the bias acknowledged by the juror (a white man) in that case was somewhat violent antipathy to the idea of sitting on a jury where the defendant, a negro, was defended by a negro lawyer. In no case that has come to my attention has this Court held that the Circuit Judge was guilty of abuse of discretion in failing to stand aside a juror on the ground that he had formed or expressed an opinion that it would require evidence to remove. Obviously in such a case the Circuit Judge's power should be exercised with the utmost circumspection. But to say as a matter of law that a trial Judge erroneously exercised his discretion in failing to stand aside a juror who has formed and expressed such an opinion as would require evidence to remove would, as was said by this Court (McIver, A.J.) in State v. Dodson, supra — "have the effect of excluding from the jury box, in any case of such magnitude or public interest as would be likely to attract attention, the very class of persons who would be best qualified to occupy that position, for in cases of that character it would be difficult to find persons of ordinary intelligence who had not received some impressions in regard to a case from what they had heard or read in the newspapers."

In the case at bar the strongest expression elicited from the juror, Blanton, in response to repeated leading questions propounded by defendant's counsel was his answer to this question:

"Q. Unless the greater weight of the testimony is given on the other side, from the views you have now, you would still maintain those views? A. Certainly, because if the other side don't prove to be the stronger, that would prove mine was the stronger."

In so answering the juror simply stated a conclusion that was inevitable if he entertained any opinion at all. There is nothing in the juror's statements indicating that his formed opinions or views were against the defendant. In the case of State v. Williamson, supra, the jurors challenged had formed and expressed opinions which "would require evidence on the part of the defendant to remove." In view of the reiterated statements of the juror, Blanton, in the case at bar to the effect that he would bring in a verdict according to the law and the evidence, and that he was sensible of no bias or prejudice that would prevent him from so doing, I am clearly of the opinion that there was no such abuse of the trial Judge's discretion as amounted to error of law.