14 S.C. 410 | S.C. | 1881
The opinion of the court was delivered by
The defendant in this case having been convicted of murder, made a motion in arrest of judgment, and also for a new trial in the Circuit Court, and his motions there being refused, he now renews them here upon the same grounds taken in the court below.
■ The motion in arrest of judgment is based upon the ground that the Circuit judge erred in discharging two of the jurors, one of whom had been drawn from the county at large and summoned under the general venire. It appears that when the list of jurors, drawn and summoned for the term at which this case was tried, was called over’, only twenty-eight answered. The court thereupon ordered sixteen additional jurors to be drawn from the box containing the names of persons residing within five miles of the court-house. _ After the jurors so drawn had been summoned, ten of them appeared, making, with those already in attendance, thirty-eight jurors, whereupon the Circuit judge, of his own motion, and for cause satisfactory to himself, excused two of the jurors) one of whom lived at a considerable distance from the court-house. It does not appear that there was any challenge of the array, nor was there any objection made until after the verdict in this case was rendered. So that even if these jurors were improperly excused, the objection could not avail the defendant, unless it appeared that he was injured thereby. Gen. Stat., ch. CXI., § 29, p. 523; State v. Stephens, 11 S. C. 319.
In this case there is nothing to show that the defendant’s rights were impaired or in any way interfered with by the discharge of these two jurors. It does not appear that his right of peremptory challenge, which, it must be remembered, is a right to reject and not a right to select jurors, (State v. Wise & Johnson, 7 Rich. 412,) was in any way abridged, and we are at a loss to conceive how the discharge of these jurors, even if it had been illegal or irregular, could operate to the prejudice of any of the rights of the defendant. We are unable to appreciate the force of the argument urged here, that the discharge of a juror who lived at a considerable distance from the court-house, and the substitution of one drawn “ from the vicinity in which the horn-
But we are by no means satisfied that any error was committed in discharging the two jurors. The Circuit judge undoubtedly had the right to excuse jurors for good and sufficient cause, and certainly in the absence of any proof to the contrary, we would a.ssume that the judge in this instance had complied with the law by requiring the affidavits provided for by the statute. We are satisfied, therefore, that there was no error in refusing the motion in arrest of judgment.
The first ground on which the motion for a new trial is based, is that, under the circumstances of the case, the dying declarations of the deceased should not have been admitted in evidence. It seems that the first witness offered by the state to prove the dying declarations, one W. H. Bartless, testified as follows: “Wras with Connolly [the deceased] some time before, and continued with him to the time of his death; deceased was rapidly sinking; I said to him: ‘You are going to die, and if you have anything to say you had better say it.’ He then said: ‘ If I die/ ” at which point he was stopped, and objection was made that the form of expression used indicated that the deceased had not then lost hope, and, therefore, the declarations were incompetent; and the objection was sustained. Subsequently another witness, J. Q,. Connolly, a brother of the deceased, was offered by the state for the same purpose, who testified as follows: “Was with deceased at the time of his death; he was very low; asked for
The rule as to the admissibility of dying declarations is, that two things must be made to appear before the declarations can be admitted. First. That the death of the declarant was imminent. Second. That he was so fully aware of this as to be without any hope of life. State v. Quick, 15 Rich. 349; State v. McEvoy, 9 S. C. 212.
It is very clear that the testimony of J. Q. Connolly, if believed by the judge before whom the case was tried, was amply sufficient to establish both of these propositions, and whether it should be believed was a question for the Circuit judge alone, so far as the competency of the declarations was concerned. It is argued, however, that the testimony of J. Q,. Connolly should not have been regarded as sufficient to warrant the admission of the dying declarations, because, as it is contended, he was contradicted by the other witness offered by the state. Even were this so, we do not see how we could impute error to the Circuit judge in holding the testimony of Connolly sufficient proof of the preliminary facts necessary to the admissibility of the declarations. But we are unable to perceive any necessary conflict between the two witnesses. They might have been, and probably were, speaking of two different conversations, or, at least, of two different parts of the same conversation. Bartless, manifestly, was speaking of a conversation between himself and the deceased, while Connolly was speaking of a conversation which he had with deceased. Bartless was with the deceased some time before his death, and at what particular time the conversation he was proceeding to narrate took place, does not appear, while the conversation testified to by Connolly was only a few minutes before the death of the deceased. It is true that Bartless was present when the conversation testified to by Connolly took place, but lie
The next ground is, that there was error in admitting parol testimony, showing the dying declarations of the deceased, without first requiring proof that there was no opportunity to reduce the same to writing at the time they were made. We are not aware of any authority for the proposition upon which this ground is based, and none has been cited to us. Indeed, from the fact that this ground was not urged in the argument here, we presume that the counsel have felt themselves unable to sustain it; and we know of no law which requires that dying declarations should be reduced to writing before they can be received in evidence, where there is opportunity to do so at the time they are made.-
The last ground upon which the motion for a new trial is based is stated in the following language: “It is respectfully submitted that when the jury having returned into court and asked instructions of the presiding judge ‘ if they [the jury] could, upon conviction, recommend the defendant to mercy/ his Honor erred in this, that, though he instructed them that they could so bring in a verdict, he omitted to instruct them that such recommendation would, in no way, affect the sentence.” It appears from the “case” as submitted here, that after the jury charged with this case had retired to their room they returned into court and asked the judge “if they [the jury] could add to their verdict a recommendation of the defendant to mercy.” They were told that they might do so, but they were not informed that such a recommendation “ would in no wise alter the sentence of the law or mitigate the punishment.” The verdict, as rendered, was in the following form: “ Guilty, and recommended to mercy.”
Jt will be observed that the judge was simply asked whether
It is argued here that there was error in informing the jury that they might add to their verdict a recommendation to mercy, because the fact that they made such an inquiry indicated that there were some on the jury who would not consent to a verdict of guilty upon any other terms. This argument rests wholly' on conjecture, and one which we could not for a moment entertain, because, without the shadow of evidence to support it, such a^ conjecture necessarily involves the gravest imputations upon the jury. Their business was to try the issue presented to them, and if they were satisfied, from the evidence, of the prisoner’s
The Tennessee cases cited in the argumeut for appellant (State v. Crawford, 2 Yerg. 60, and Cochran v. State, 7 Humph. 544,) do not apply, for in each of those cases there was evidence submitted showing that one of the jurors was not satisfied of the guilt of the prisoner, and only consented to-the verdict because he believed that the recommendation to mercy would secure the pardon of the prisoner. Here, however, there is no such evidence, and in the absence of such evidence it would be a most unwarrantable assumption on our part to presume that any one of the
The judgment of the Circuit Court is affirmed.
The sentence of the prisoner, in this case, has been commuted by the governor to imprisonment at hard labor in the state penitentiary for life. — Be-PORTER,