35 S.C. 192 | S.C. | 1892
The opinion of the court was delivered by
The defendant was arraigned and tried at Orangeburg for burglary and larceny, at the January term, 1891. On being arraigned and before pleading to the indictment, he challenged the array of the entire panel, both grand and petit jurors, upon the grounds: ‘T. That the jury list for the year 1891, out of which said juries were drawn, was not prepared by H. Riggs, the legally appointed jury commissioner of said county, but by E. J. Felder, whose term of office as jury commissioner had expired, and his successor as aforesaid had been duly appointed and confirmed by the senate. II. That the said jury list was not prepared in the month of December, but the same, and especially the part of said list for the tales box, was prepared qn the 2nd day of January, 1891. III. That the said list was prepared by H. H. Riggs, the son of the newly appointed jury
To these objections the solicitor demurred, and after argument the judge overruled the demurrer, with leave to traverse the facts. Testimony was then heard by the judge, who found and ruled as follows:
“It appears that E. J. Felder was appointed jury commissioner, and that his term of office expired on December 24, 1890, and that previous to that time H. Riggs had been appointed to fill the vacancy and was confirmed by the senate, but that, for some reason, his commission was not made out until January 8th. The preparation of the jury list is by the joint act of the jury commissioners or a majority of them, and cannot be said to have been prepared by the separate or joint acts of the members of the board until they, or a majority of them, had performed some act tending to make it unalterable. This did not occur until January 2, 1891. In all this preparation E. J. Felder was the de facto jury commissioner, claiming to be de jure, and was so recognized by the other commissioners and by the other appointee, II. Riggs, who had not then qualified or been commissioned. The act required this preparation to be made in December, 1890, but the weight of the decisions hold such acts to be merely directory, and I hold this one to have been so, and the irregularity therefore is not fatal. No one interfered in the preparation of the work, although H. H. Riggs did some work as an amanuensis. The statute does not require, as the defendant seems to suppose, that the names of all persons living within seven miles of the court house shall be excluded from the list for the general box, but merely requires that the name of no juror shall be put in both boxes, as is permissible in most of the other counties,” &c.
We concur with the Circuit Judge, that Felder was defacto jury commissioner in the interval between the expiration of his term of office and the appointment and qualification of his successor, Riggs. The law prescribes the time within which the jury lists shall be prepared. “The selection of ajurybythe jury commissioner before he has taken the oath of office will not be upheld. * * * It is no ground for challenging the array that the jury list was prepared by a commissioner whose term of office had expired; for the acts of a de facto commissioner, if regular, will be binding.” Thompson & Merriman on Juries, section 188; Hirsch on Juries, section 282. “It is no ground of challenge to the array of the jury, that the jury lists were prepared by a jury commissioner whose term of office had expired, but whose succes
The judgment of this court is, that the judgment of the Circuit Court be affirmed, and the appeal dismissed.