71 S.E. 977 | S.C. | 1911
July 31, 1911. The opinion of the Court was delivered by When this action of damages for assault and battery was called for trial, defendants' counsel, in the form of a challenge to the array of petite jurors, objected to trial of the case before the jury on the ground of the relationship and close personal association between the plaintiff and Charles T. Haynie, treasurer of Florence county, who as one of the jury commissioners had participated in the drawing of the jury. The Court took evidence on the point from which it appeared that Haynie was the son-in-law of the plaintiff; that his wife, who was the only child of the plaintiff, was dead and that her children, as the grandchildren of the plaintiff, would in case of his dying intestate inherit his property; and that the intimacy which usually flows from such a relationship existed between the plaintiff and Haynie. Haynie testified that he knew of the pendency of the action, but did not regard it or even have it in mind when he participated in the drawing of the jury. The Court refused to sustain the objection to the jury, taking the precaution, however, to examine each juror on hisvoir dire.
The general rule on the subject is thus stated in State v.Perry,
But in the recent case of State v. Smith,
The important fact is to be first considered that the names in the jury box had been selected and placed therein written on folded slips in December, 1909, under the statute which so requires; whereas, the cause of action did not arise until September, 1910. It was therefore impossible that the names in the box could have been chosen with any view to this case; and there could be no abuse of discretion in holding that the defendant could not have been prejudiced by the *404 participation of Haynie in selecting the names and placing them in the jury box.
The following provisions of the statute safeguard the box after it is made up against the corruption or misconduct or partially of any one or two of the jury commissioners: "That of the list so prepared, the county auditor, county treasurer and clerk of the Court of Common Pleas, shall cause the names to be written, each on a separate paper or ballot, so as to resemble each other as much as possible and so folded that the name written thereon shall not be visible on the outside, and shall place them, with the said list, in a strong and substantial box, without apertures or openings when closed (to be known as the "Jury Box"), to be furnished to them by the county supervisor of their county for that purpose, and of such size and shape as that, when such separate papers or ballots shall have been folded and placed therein as above required, they may be easily shaken up and about and well mixed therein, and it shall be the duty of the clerk of the court to keep such box in his custody. The said jury box shall be kept securely locked with three separate and strong locks, each lock being different and distinct from the other two and requiring one key peculiar to itself in order to be unlocked and the key to one of said three locks shall be kept by the county auditor himself, the key to another of said three locks by the county treasurer himself, and the key to the third of said three locks by the clerk of the Court of Common Pleas himself, so that no two of them shall keep a similar key or similar keys to the same lock, and so that all three of them must be present together at the same time and place in order to lock or unlock and open said jury box." A.A. 1902, 23 Stat. 1066.
In directing the drawing of jurors to serve at any term of the Court, the act by section 4 confers on the jury commissioners no right of selection, but does confer the discretion to reject in these words: "If there shall be drawn from said jury box a ballot containing the name of any person not *405 between the ages of twenty-one and sixty-five years, or not of good moral character, or who has died, or who has removed from the county or is otherwise disqualified to serve as a juror, such ballot shall be destroyed and such name struck from the said list and another ballot drawn."
But the act also contains in section 6 the following very important provision as to the publicity of the drawing of the jury: "That the said drawing shall be made openly and publicity in the office of the clerk of the Court of Common Pleas, and the county auditor, the county treasurer and the clerk of the Court of Common Pleas shall give ten days' notice of each of said drawings by posting in a conspicuous place on the courthouse door, or by advertisement in a county newspaper, a notice of the place, day and hour of such drawing:Provided, That in case any term of Court is to be held within less than twenty days after the approval of this act, such jurors may, nevertheless, be drawn without such notice."
No provision similar to this was contained in the acts under which it was decided in the case of State v. McQuaige,
Applying the rule laid down in Jeffers v. Jeffers,
The publicity statute should be given full force as a law made not only to secure the purity of the jury box, but to enable parties to ascertain any facts which would give ground of complaint against the fairness of the drawing, and make them plain to the Court.
Summarizing the considerations entering into the exercise of judicial discretion, we think it is clear that there was no abuse of discretion in refusing to hold the jury not a legal one for the trial of this case. The objection on account of the relationship to one of the parties was not to the making up of the jury list or placing it in the box, but to the drawing *407 only; the defendant had a right to be present at the drawing and object to Haynie's participation, and then ascertain whether the board of which he was a member exercised the discretion of accepting or rejecting any name drawn, or only performed the mechanical function of drawing the names from the box; and no evidence of objection to Haynie's participation or of the exercise of any discretion to reject or accept was furnished to the Court.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed.