State v. Amburgey , 206 S.C. 426 ( 1945 )

The appellant, a man sixty-three years of age, was tried and convicted at the September, 1944, term of Court of Greenville County. While the indictment charged murder, the jury found him guilty of manslaughter and he was sentenced to serve nine years.

Before the adjournment of the Court, but after sentence (the respondent raises no issue as to the sentence having been pronounced), the appellant made a motion for a new trial upon the ground that he had been tried by an illegal jury, in that it had developed that W.B. Perry, one of the jurors who tried and convicted the appellant, was not a qualified elector. There was a W.B. Perry residing in Greenville County who was a qualified elector, but not the one who sat as a juror on appellant's case.

It is conceded that the presiding Judge did not "ascertain the qualification of jurors by having them present to the Clerk of Court their registration certificates or other satisfactory evidence" that they were qualified electors.

While the jurors in this case were examined on their voirdire, and counsel were permitted by the Court to ask additional questions as to their qualifications, there was no inquiry as to whether the jurors were qualified electors.

The trial of appellant was begun on September 4, 1944. On September 9, 1944, the same week of Court, when a jury was being selected to try another defendant, it came to light that juror W.B. Perry was not a qualified elector, and he was excused from further jury duty. Upon this information coming to the attention of appellant, he made a motion for a new trial as aforestated.

Article 5, Section 22, of the Constitution of 1895 is in part as follows:

"All persons charged with an offense shall have the right to demand and obtain a trial by jury. * * * The grand jury of each County shall consist of eighteen members, twelve of whom must agree in a matter before it can be submitted to the Court. 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. Each juror must be a qualified elector under the provision of this Constitution, between the ages of twenty-one and sixty-five years, and of good moral character."

Section 608 of the Code of 1932, as amended by Act of the 10th of May, 1933, 38 St. at Large, p. 446, No. 321, is in part as follows:

"The said county auditor, county treasurer, and the clerk of Court of Common Pleas of each county shall in the month of December of each year, prepare a list of such qualified male electors, under the provisions of the Constitution, between the ages of twenty-one and sixty-five years, of good moral character, of their respective counties, as they may deem otherwise well qualified to serve as jurors, being persons of sound judgment and free from all legal exceptions, which list shall include not less than one from every three of such qualified male electors under the provisions of the Constitution, between the ages of twenty-one and sixty-five years and of good moral character, to be selected without regard to whether such persons live within five miles or more than five miles from the court house * * *."

In 1939 by Act No. 219, 41 St. at Large, p. 332, Section 608 of the Code of 1932, as amended in 1933, was further amended so as to provide in part that the list of qualified male electors shall be prepared from the official enrollment books of qualified electors, and provided further "that the presiding judge shall at each term of court, ascertain the qualifications of jurors by having them present to the clerk of court their registration certificates or other satisfactory evidence that they are qualified electors," and said section as amended by the Act of 1939 appears as section 608 (the same section number) of the Code of 1942.

In the case of State v. Gregory et al., 171 S.C. 535,172 S.E., 692, 695, tried at Chesterfield in September, 1932 (prior to the amendment of 1939), Gregory and another were convicted of manslaughter, and a motion for a new trial was made and granted on the ground that several of the jurors were not registered electors. In that case no issue was raised about the jurors until after an adverse judgment, although the jurors were sworn on their voir dire and were not questioned as to whether they were qualified electors. In reversing the trial Judge for granting a new trial to the convicted defendants, this Court stated:

"Clearly, under numerous decisions of this court, so very many that it is useless to cite them (see annotation under section 639 of the Code), a party, in his trial, who fails to exercise due diligence in discovering the disqualification of a juror, before the empaneling of the jury, cannot, after the rendition of a verdict adverse to him, rightly ask the court to disturb that verdict. This court time after time, has disapproved the quiet sitting of a party, with information already obtained, or which could be easily obtained, as to the disqualification of a juror, taking his chances, ready to acquiesce in a favorable verdict, and more ready to move the setting aside of an unfavorable one. The provisions of section 639 of the Code say that objections to jurors, not taken before the jury is empaneled, `shall be deemed waived; and if made thereafter shall be of none effect.' The court has construed the language of the section to mean such objections of which the party had knowledge, or which by the exercise of due diligence he could have known."

However, prior to the statement just above quoted, the Court stated:

"We are in thorough accord with the position of the respondents, which was upheld by Judge Stoll, that the respondents in their trial, in the court of general sessions, were entitled, as a matter of right and law, to be tried by twelve jurors, qualified under the law to act as jurors in their case, and that one of the necessary qualifications was the registration of each and every juror as a qualified elector of the county of Chesterfield. See State v. Rector, 158 S.C. 212,155 S.E., 385, and the several cases therein reviewed."

In State v. Bibbs, 192 S.C. 231, 6 S.E.2d 276, tried in February, 1939 (prior to the amendment of Section 608 of the Code of 1932 as amended in 1939, and where timely objection was made), the defendant was convicted on an indictment charging murder, which indictment was found by a grand jury six of whom did not possess the legal qualifications of grand jurors in that they were not legally qualified electors, and on appeal this Court set aside the conviction. In the Bibbs case there is quoted with approval from the case of State v. Rector, 158 S.C. 212, 155 S.E., 385, a portion of the concurring opinion of MR. JUSTICE COTHRAN, in which he stated:

"* * * that one who may be drawn, sworn in, and acts as a grand juror in passing upon an indictment, when he is not legally qualified to do so, is a stranger to the proceedings, as much as if he had never been drawn; his participation would therefore be illegal; it would be impossible to gauge the extent of his influence upon the qualified members of the jury." (192 S.C. 231, 6 S.E.2d 281.)

The only case of which we may have any knowledge coming to this Court, and involving the question now before the Court and tried and decided since the amendment of 1939 making it the duty of the trial Judge to ascertain the qualifications of prospective jurors, is State v. Logue, 204 S.C. 171,28 S.E.2d 788, 790. The defendant-appellant, Logue, was convicted of murder, and moved for a new trial on the ground that the trial Judge failed to comply with Section 608 of the Code (1942), in that he did not ascertain the qualifications of the jurors by having them present to the Clerk of Court their registration certificates or other satisfactory evidence that they were qualified electors, which motion was refused.

In passing upon the exception thereto, the Honorable Wm. H. Grimball, Circuit Judge, Acting Associate Justice, writing the opinion of the Court, had this to say:

"There are two reasons for which this exception must be dismissed.

"There is no showing made in the record that appellant was in any manner prejudiced by the fact that the jurors were not required to present to the Clerk of Court their registration certificates or other satisfactory evidence that they were qualified electors. It may be presumed from the failureto make any such showing that those called to serve as jurorsat this term of court were qualified electors — and that thetwelve men who sat upon the jury which convicted appellantwere qualified electors. (Emphasis added.)

"Nor does the record show that any timely suggestion was made to the presiding judge that he should have those upon the venire present to the Clerk of Court their registration certificates or other satisfactory evidence that they were qualified electors. Had such a request been made, Judge Bellinger, able and experienced trial judge that he is, would undoubtedly have required this to have been done.

"`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 empaneled 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.' Code, Section 639; State v. Gregory, 171 S.C. 535,172 S.E., 692."

That case is distinguishable from the present case in the important particular that it discloses that no showing was made that any of the jurors were in fact disqualified. The second reason given by Mr. Justice Grimball must be read in the light of Section 639 of the Code, and as being applicable only because of the dual fact that the trial Judge failed to inquire as to the qualifications of the jurors and that none of such jurors were in fact disqualified. Were the request made and refused, it might be that the refusal of the trial Judge to comply with it would be reversible error without inquiring into the question whether any of the jurors were in fact disqualified. But that is a matter not involved in the present case, and we express no opinion thereabout.

The correct interpretation of the Logue case is that "it may be presumed from the failure to make any such showing that those called to serve as jurors * * * were qualified electors — and that the twelve men who sat upon the jury which convicted the appellant were qualified electors," and that in consequence of this presumption, necessitated by the record, the defendant could not be thought to have been prejudiced by the omission of the trial Judge to comply with the statutory direction.

In the face of such presumption, it would have been hypertechnical on the part of this Court to recognize the asserted omission on the part of the Circuit Judge as having any possible bearing on the merits of the case. And this would be true whether we regard the matter from the standpoint of the bare failure of the trial Judge to comply with the statutory direction, or from the standpoint of the failure of counsel to call attention to the matter before judgment.

In the present case, on the other hand, it is a record fact that one of the jurors was disqualified under both the Constitution and the statute law of the State. The defendant, especially in a case involving a capital crime, is entitled to full compliance with the constitutional and statutory mandates respecting the qualifications of the jurors who are to decide his fate, provided that non-compliance therewith involves no affirmative acts on the part of the defendant or his counsel creating an estoppel. When there was no statutory direction with respect to the manner of determining the qualification of jurors, it may be reasoned that the responsibility rested as much upon counsel as upon the Court, and that lack of diligence on the part of counsel in ascertaining the facts constituted a waiver of the right to raise the objection after judgment. But where the statute specifically places upon the trial Judge the burden of ascertaining the qualifications of jurors, that takes the burden away from counsel for the defendant. It is equivalent to saying to the defendant and his counsel that in respect to other matters of disqualification of jurors, they must continue to be diligent without reliance upon the Court to protect their rights, but that in respect to the determination whether each juror is a qualified elector, the duty rests upon the Court.

There is a fundamental distinction between common law grounds of disqualification which have been enacted into statute, such as relationship by blood or marriage, pecuniary interest, expressed bias, etc., and disqualifications which arise out of the constitutional elements of due process in the trial of persons accused of crime. The latter are mandatory; and when the burden of ascertaining their presence in a pending case is placed upon the Court, that burden cannot be shifted to the defendant.

The case, of course, would be different if it were shown that the defendant had actual knowledge of the disqualification of the juror in question and went to trial without raising the point. Vital juridical considerations would then deter the Court from giving heed to the objection after the imposition of sentence.

The rule above stated involves no departure from established principles. On the contrary, it conforms to them.

In civil and criminal cases alike, this Court had repeatedly held that failure of the Court to charge the principles of law applicable to a pending case is reversible error, even though counsel failed to call the attention of the Court to such omission. See, for example, State v. Osborne, 200 S.C. 504,21 S.E.2d 178.

Nor does a waiver arise out of the fact that the trial Judge committed error in stating the applicable law, even though counsel had an opportunity to call the Court's attention to such error and failed so to do. Citizens Bank v. McDonaldet al., 202 S.C. 244, 24 S.E.2d 369.

How much more vital it is that in a capital case, where the statute expressly imposes on the trial Judge the duty to safeguard the constitutional and statutory rights of the defendant by giving him a jury with the qualifications prescribed by law, the defendant shall not be put on his trial before a jury of whom one or more members had no right to sit in judgment on his life or liberty.

The matter was well expressed by the late Chief Justice McIver in the civil case of Garrett v. Weinberg, 54 S.C. 127,31 S.E., 341, 345, 34 S.E., 70:

"The only remaining inquiry is whether the disqualification of Ardis to serve as a juror entitled the defendants to have their motion for a new trial granted. In view of the express provisions of the constitution above quoted, which are declared mandatory, it is difficult to see how this question can be answered otherwise than in the affirmative. This being a question of title to real estate, it is not necessary to cite authority to show that the parties were entitled to a trial by jury. What that jury should consist of is expressly declared in mandatory terms by the constitution. It must be a body of 12 men, each of whom must be a qualified elector, and `all of them must agree to a verdict, in order to render the same.' These are the express mandates of the constitution, and must be obeyed. But here we have a body of 12 men, one of whom is not a qualified elector, who has undertaken to render a verdict, which, under the terms of the constitution, they have no power to do; and hence the same should be disregarded, and set aside, and a new trial ordered."

While the holding in that case appears to be limited by the decision in the case of State v. Robertson, 54 S.C. 147,31 S.E., 868, to the extent of imposing the requirement that it appear that the disqualification could not have been discovered with the exercise of reasonable diligence prior to judgment, that case was decided prior to the 1939 amendment which we regard as controlling in the disposition of the question now before us.

As stated by the late Chief Justice Bonham while acting as Associate Justice, in the case of State v. Elliott, 169 S.C. 208,168 S.E., 546, 548:

"The Constitution guarantees to every person a fair and impartial trial by a jury of his peers. It cannot be said that one has had such trial if there has sat on the jury one who is expressly disqualified to sit there; * * *."

In the case last cited the due diligence rule was restated but that case, too, was decided prior to the 1939 amendment.

We attach considerable weight to the fact that the General Assembly, presumptively knowing of the due diligence rule which theretofore had prevailed, concluded that in the matter of the determination of the qualification of jurors, the burden should rest upon the Court and not upon the defendant. There is no other theory upon which the 1939 amendment can be construed or applied. And as so construed or applied it is a definite negation of the previously existing rule as applied to the facts of this case.

The above holding makes it unnecessary that we pass upon the other exception of the appellant.

The judgment of the lower Court should be reversed and the case remanded to that Court for a new trial.

MR. ASSOCIATE JUSTICE TAYLOR concurs.