35 S.C. 175 | S.C. | 1892
The opinion of the court was delivered by
The defendant was indicted for “grand larceny” in stealing sixty dollars from one Frank Carielle “at Magnolia Mines, in the County of Berkeley.” The witnesses were ail Italians recently arrived in the country. They testified through an interpreter, and were unacquainted with the county lines, &c. There was an order separating the witnesses during the trial. As the solicitor was about to rest his case, he remembered that he had not proved the venue, and he asked permission to call C. P. Winters, who was on the jury, to prove that the Magnolia Mines were in Berkeley County. The permission was given, and Mr. Winters, being sworn, proved that he resided at Drayton Hall, near the Magnolia Mines, and that they were in Berkeley County. He then resumed his seat on the jury, and they found the defendant “guilty.”
The appeal comes to this court upon the grounds : “ 1. Because his honor erred in refusing a new trial. 2. Because there was no proof that the money charged to be stolen was taken from Magnolia Mines. It is therefore submitted that his honor erred in not so holding. 3. Because to prove that Pinckney’s Mine and Magnolia Mines are in Berkeley County, without proving that the money was taken from either of said Mines, was a fatal failure of proof of venue, and his honor erred in not so ruling. 4. Because one C. P. Winters was sworn and empannelled as a juror to try the case against the defendant, and having heard these witnesses on the part of the State, was called by the solicitor from the jury box and sworn as a witness for the State, and was then allowed to return to the jury box and joined as a juror in finding the verdict; and it is alleged that this was contrary to law and the rules of evidence. 5. Because before taking the testimony, the judge ordered the witnesses to be excluded from the court room during the hearing of the testimony, and to remain without until called. It is charged that Winters did not leave
In Rex v. Rosser (7 Carr. & P., 648), it was held that “where, in a criminal prosecution, it is essential to prove the particular value of an article, the jury may use the general knowledge which any man can bring to the subject; but if any of the jurors have a particular knowledge on 'the subject, arising from his being in the trade, he ought to be sworn and examined as a witness.” See Greenl. Evid., § 384 (n). Mr. Wharton says that “a juror, who has knowlédge of any particular fact, must give notice, so that he may be sworn and examined. * * * Although each juryman may apply to the subject before him that general knowledge which any man may be supposed to have, yet if he be personally acquainted with any particular material fact, he is not permitted to mention the circumstances privately to his fellows, but he must submit to be publicly sworn and examined, though there-
The judgment of this court is, that the judgment of the Circuit Court be affirmed, and the appeal dismissed.