12 S.C. 89 | S.C. | 1879
The opinion of the court was delivered by
The motion to quash the indictment in this •case was upon two grounds:
1. Because the jury commissioner who aided in drawing members of the grand jury “ was the husband of a cousin of the ■deceased.”
2. Because the solicitor “ had, under the direction of the court, free access to the grand jury, and did visit the same before and ■ •during the day they had under consideration the bill of indictment in this case.”
The appeal is from the refusal of the Circuit judge to grant the motion. As to the first ground, the testimony is that the wife of the jury commissioner is a cousin of the deceased in the fourth or fifth degree, and there is no evidence of affinity other .than that incident to such connection. There is no consanguinity Between the jury commissioner and the deceased, and the degree •of affinity shown is remote — too remote to be of itself evidence of bias or prejudice against the person charged. The case of State v. McQuaig, 5 S. C. 429, was decided upon the ground that the jury commissioner was a near blood relation — first cousin of the deceased. It is unnecessary, perhaps impossible, to. draw an absolute line to mark what degree of relationship or affinity must control in such cases; but it is sufficient here to say that in the present case there is no relationship by blood, and no evidence of such affinity as, of itself, would reasonably lead to the presumption that the jury commissioner would thereby be affected, in such manner as to impair the proper discharge of his duties.
As to the second ground, the evidence is that the solicitor did go to the grand jury room, “ at the request of the foreman, * * * and instructed him how to write the findings, but that he had not been in the room while the case of the prisoner was under •consideration.” The evidence is conclusive on the point in question ; but this court does not hesitate to say that the solicitor has
The first ground for new trial is that the judge erred in allowing the state, when the petit jury was being empaneled, to cause jurors to “stand aside” without challenge, and without cause shown. The, practice pursued in this respect by the Circuit judge has been long since established, and no law or sufficient reason has been advanced to show why it should be changed. State v. Barrontine, 1 N. & McC. 553; State v. Wise & Johnston, 7 Rich. 412. The order to stand aside for a time is distinct from a challenge, and is not affected by the act of 1871 (14 Stat. 690), which confers upon the state the additional right of peremptory challenge to a limited extent. The ruling of the Circuit court as to this point is sustained.
The second ground is that the judge erred “in withdrawing from the consideration of the petit jury, charged with the trial, * * * the testimony of J. S. Grimes, a witness on the part
The third and fourth grounds show no error, and do not require particular consideration. The fifth ground has been already disposed of.
The judgment of the Circuit Court is therefore set aside, and a new trial granted.
Motion granted.