39 S.C. 400 | S.C. | 1893
Lead Opinion
The opinion of the court was delivered by
There was a preliminary question raised in this case by the motion of respondent to dismiss the appeal upon the ground that under the laws of this commonwealth regulating appeals in criminal cases, an appeal to this court does not lie against any interlocutory order of the Court of General Sessions, but that such appeal must wait until after final judgment. This court, by its order dated April 24th, 1893, directed that this motion be considered along with the questions involved in the appeal itself, to be heard on the 26th May, 1.893.
The fundamental question presented by the appeal is as to the jurisdiction of the Court of General Sessions for Anderson County to try the defendant for a crime alleged to have been committed in Greenville County, in which latter county the defendant resided; where the homicide occurred; and where a true bill had beeu found in the Court of General Sessions. We will not reproduce the orders of Judges Aldrich and Izlar and the grounds of appeal. They will be set forth in the report of the cause. But, in order that the contention may be manifest, a brief recital of the facts will be made.
Testimony was then introduced, and substantiated the foregoing allegations of fact. This testimony was at the time reduced to writing by the official stenographer. Care was taken to inform the court that no reflection upon the high character of the sheriff was.int.ended — all his actings officially were statutory — and, we may add in passing, that such care was observed by all the counsel in this court. At the hearing before Judge Aldrich, it was established by testimony that Perry D. Gilreath, Esq., had just been re-elected sheriff for four years. On the 16th November, 1892, Judge Aldrich made an order, whereby he quashed the panel of petit jurors, and also ordered the record of the cause to be transferred to the
It is the judgment of this court, that the judgment of the Circuit Court be affirmed, and that the cause be remanded to the Court of General Sessions for Anderson County for trial there.
Concurrence Opinion
I concur in the result. It seems to me that, after the Circuit Judge had reached the conclusion that the challenge to the array of the petit jurors must be sustained, upon the ground that such jurors had been drawn and summoned by officers who, by reason of their relationship to the deceased, could not lawfully be regarded as impartial and disintei'ested officers, it must necessarily be considered that he, at the same time, determined that the accused could not obtain a fair and impartial trial by jurors so drawn and summoned, and hence a proper case for an order changing the place of trial was presented. If, under the circumstances appearing in the case, fair and impartial jurors Could not be legally obtained in the County of Greenville, the accused could not there obtain a fair and impartial trial; and if, as it likewise appears, these circumstances were likely to continue for at least four years, it is quite clear that the accused could not obtain that speedy trial guaranteed to him by the Constitution; and hence it was not only the right, but the duty, of the Circuit Judge to grant the order changing the place of trial.
Concurrence Opinion
I concur. I think that the sworn evidence that sustained the challenge to the array of petit jurors was quite sufficient to authorize the transfer of the case to the County of Anderson for trial.