41 S.C. 531 | S.C. | 1894
The opinion of the court was delivered by
The defendant was indicted for larceny of “live stock,” and, at the February Term of the Court of General Sessions for Fairfield County, 1894, was found “guilty;” and was, thereupon, sentenced by his honor, Judge Watts, “to three years in the State penitentiary at hard labor.”
After the jury had been empanelled and sworn, a juror, D. M. Milling, arose and said to the court: “Your honor, I do not think I am competent to sit on this jury. I have heard my brother-in-law talk about the case, and I have formed and expressed an opinion.” The court: “Could you not render a verdict, according to the evidence, independent of any opinion you may have formed already?” Juror: “That is what is troubling me.” His honor thereupon held that the jury had passed beyond his jurisdiction, and that he could do nothing but proceed with the trial, &c. The defendant had already exhausted the number of challenges, peremptory challenges, allowed by law. At the time the juror arose in his place and addressed the court, no witness had gone on the stand and no evidence had been taken.
The defendant appeals from the rulings of the presiding judge, upon the following grounds: I. That his honor should have held that, whether or not the juror was indifferent between the parties, was a question of fact, and to be decided by the trial judge. II. That his honor erred in holding that the jury, although sworn, had passed beyond his jurisdiction, and should have ordered a mistrial.
In Kennedy v. Williams, 2 Nott & McC., 79, it was held that “when the sheriff summoned a person as a talesman, who had not been drawn, but who sat on the trial, it was held to be a good ground for a new trial. In the case of State v. Stephens, supra, the court said: “It cannot admit of reasonable doubt, that if proper evidence of such a fact as would justify the court in granting a new trial, should be brought to the notice of the court during the progress of a criminal trial, a juror might be withdrawn, and the trial proceed de novo," &c. In 12 Am. & Eng. Enc. Law, page 364, it is said, in speaking on the subject of the judge’s power to discharge a jury, “that the state of the question in the United States is accurately expressed by an eminent authority as follows: Whenever, either in felony or
The judgment of this court is, that the judgment of the Circuit Court be reversed, and the cause remanded to that court for a new trial.