54 S.C. 127 | S.C. | 1898
Lead Opinion
The opinion of the Court was delivered by
This case having been before this Court on three previous occasions, it is not deemed necessary to make a full statement of the case, as that may be obtained from the former appeals, which will be found reported in 43 S. C., 36, 48 S. C, 28, and 50 S. C., 310. It is only necessary now to state that the plaintiffs, recognizing the title of the defendants to one undivided half of the land in dispute, which is now in the possession of the defendants, claim title to the other undivided half, and seek by this action to establish such title for the purpose of obtaining partition of the land. The plaintiffs base their claim of title upon the allegation that the land in question originally belonged to one Thomas Garrett, who died intestate on the • — • day of November, 1865, leaving as his heirs at law, his widow, Elizabeth, who subsequently intermarried with one John S. Moore, and his children, named in the complaint, and the plaintiffs are the children who survived at the time of the commencement of this action, together with the descendants of those who had previously died. The plaintiffs did not undertake to trace their title back to a grant from the State, but endeavored to establish their title by offering evidence to show that their ancestor, Thomas Garrett, for more than twenty years prior to his death, had been in notorious, adverse possession of the land, from which they claimed that a grant from the State would be presumed. 2d. By undertaking to show that both plaintiffs and defendants claimed from Thomas Garrett as a common source of title, which superceded the necessity for going back to a grant from the State. This question of title was tried before his Honor, Judge Witherspoon, and a jury, who rendered a verdict in favor of plaintiffs. A motion for new trial was made on the minutes, upon grounds which will be hereinafter stated, which, being refused, judgment was entered upon the verdict. From this judgment, as well as
Want of time and space forbids any extended consideration of the question hereinbefore suggested, as to whether the juror was disqualified under the law as it stood at the time he was convicted of larceny. That law may be found in the act of 1871, 14 Stat., 690, as there was then no constitutional provision upon the subject. The provisions of that act applicable to this question have been carried forward into the Rev. Stat. of 1893, as sections 2377 and 2379. The former section provides that all persons who are entitled to vote, “shall be liable to be drawn and serve as jurors, except as herein provided;” and the latter section reads as follows: “If any person whose name is placed in the jury box is convicted of any scandalous crime, or is guilty of any gross immorality, his name shall be withr drawn therefrom by the board of jury commissioners, and he shall not be returned as a juror.” Reading these two sections together, it seems plain that a person, though entitled to vote, if convicted of a scandalous crime — larceny, for example — is not liable to be drawn or serve as a juror, but is expressly forbidden to be returned as a juror; and is, therefore, not qualified to serve as a juror.
The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.
Rehearing
Petition for rehearing filed November 9, 1898, and remittitur stayed.
January 7, 1899,