44 S.C. 344 | S.C. | 1895
The opinion of the court was delivered by
The defendant was convicted of the crime of murder at the January, 1895, term of the Court of General Sessions for Abbeville County, and, after his honor, Judge Buchanan, as presiding judge, had pronounced the sentence of death upon him, an appeal was taken to this court. The solemn duty now awaits this court to dispose of the various propositions raised by the zealous and able counsel for the unfortunate man at the bar of this court in behalf of the appellant. Without reproducing the text of these grounds of appeal in every instance, we will, first, dispose of those relating to the grand jury that found the bill of indictment and to the petit jury that rendered the verdict of guilty.
The “Case” shows that said writ was duly issued under the hand and seal of the clerk of the Circuit Court of Abbeville County, on the 15th day of May, 1894, requiring the sheriff to serve the three jury commissioners, and requiring them to draw and annex to the panel of this writ eighteen good and lawful men, whom the said sheriff was required immediately thereafter to summons, to be and appear at the Court of General Sessions for Abbeville County, on the 4th day of June thereafter, to serve as grand jurors. The “Case” also shows that the three jury commissioners, on the 18th day of May, 1894, in obedience to the writ of venire facias, did draw and annex the names of eighteen good and true men as said grand jurors. The “Case” also shows that the sheriff of Abbeville County made his certificate that he did serve a summons upon each one of the eighteen good and true men as grand jurors. And, lastly, the “Case” shows that these eighteen men responded to said summons, and did act as said grand jury at the June term, 1894, and also at the October term, 1894, at which latter term the said grand jury found a true bill on the indictment preferred against the defendant for murder.
Will the failure to have the service upon the jury commissioners entered in the writ, when the record shows that the writ to them was duly issued, and that all three of them acted in obedience to said writ, render the indictment found by a grand jury drawn by such jury commissioners null and void? We do not think so. It is better practice that the sheriff should conform to the letter of the law. But in the case from Edge-field, State v. Toland, 36 S. C., 522, when the jury commissioners acccepted service on the back of the writ and made out their return, that in obedience to the writ they had drawn the eighteen names as grand jurors, we held that it was sufficient.
But again, the defendant insists that the bill of indictment should be quashed because it does not appear that the sheriff made his return of service upon the grand jurors under oath,
We will next notice the grounds of appeal relating to the petit jury. It appears from the “Case” that only one juror, J. W. Shaw, did not attend the court as required by law of jurors, and this juror was not served with a summons to attend, for the very good reason, as set out by the sheriff, that he had left the county. The same objections were raised in the challenge to the array of the petit jurors that was raised as the basis for the motion to quash the indictment, viz: no service upon the jury commissioners of the writ of venire facias, regularly issued under the seal of the clerk of the court on the 5th day of January, 1895, Requiring them to select thirty-six petit jurors, although it appeared that the said jury commissioners, in obedience to said writ, did draw the said thirty-six petit j urors whose names were entered on the panel attached to the
The ninth ground of appeal is in these words: “Because his honor erred in charging the jury that when confessions are corroborated by the circumstances, the jury should consider them as they consider other testimony.” When the confession was being considered by the court, it appeared in testimony that the defendant had borrowed a gun on the afternoon of the homicide; not only so, but that while with his gun in his hands he had met some women, to whom he declared his purpose of
It is the judgment of this court, that the judgment appealed from be affirmed, and that the cause be remitted to the Circuit Court, to the end that a new day be fixed and assigned for the execution of the sentence heretofore imposed upon the defendant.