State v. Browning

108 S.E. 105, 116 S.C. 252, 1921 S.C. LEXIS 105

• Court: Supreme Court of South Carolina
• Decided: June 30, 1921
• Docket: 10629
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Watts.

The respondent was convicted of murder with a recommendation to mercy before Judge Rice and a jury at the September term of Could, 1919, for Orangeburg County, and sentenced by the Judge to life imprisonment. From this judgment and sentence defendant appealed.

Rater, to wit, September, 1920, a m'otion whs made in the Court of General Sessions before Judge Mauldin, for a new trial, which was granted. Thereupon the State appealed and challenges the correctness of this order granting a new1 trial. This order should be set out in the report of the case.

The moving papers in the case show conclusively that the motion was made solely on the question of relationship of Judge Rice to the deceased, the contention being that they were connected within six degrees by consanguinity or affinity, and Judge Mauldin based his order on this.

It is true that he uses the language, “under the facts revealed before me”; but no' reference can be drawn that he acted other than on the question of relationship, and did not exercise his discretion in granting a new trial on after-discovered testimony. That was not before him and was not considered by him, and the question solely to be considered by this Court is: Was he in error in granting the new trial on the question of connection by affinity of Judge Rice and the deceased, and the widow of the deceased?

Under the showing made Judge Rice is not within the prohibited degree; he is not related within the sixth degree. When he tried the case, he did not know of any relationship or affinity; the order of Judge Mauldin shows that.

1 It is absurd to hold that because a Judge is related to one who employs a lawyer to prosecute a crimnal case he is disqualified to try the case. It will be

seen by the exhibits in the case that Judge Rice, under Section 3565, subd. 6, Vol. 1, Code of Laws 1912, was not within the sixth degree, but seventh, and the order must be reversed for this reason, and also under the opinion of Mr. Justice Gary (now Chief Justice) in Ex parte Hilton, 64 S. C. 205, 41 S. E. 978, 92 Am. St. Rep. 800, and authorities therein cited. The appeal from Judge Rice involves two questions: Was it error in excusing the Juror Jeringan without legal ground or excuse over and against the objection of the defendant, and alleged error in the charge of his Honor?

2 The first will have to be sustained. His Honor was in error in excusing the juror. Under the affidavit submitted it did not show that he was excused, under the statute; it did not show that he was sick, but solely for business reasons. Ordinarily a Judge can excuse in the exercise of his wise discretion, although he ought to be careful and not allow private interests to prevail over public good; a public duty to serve on the jury is more important to good citizenship than to inconvenience a private enterprise, by having one of its employees absent serving on the jury, thereby temporarily inconveniencing the business.

The statute says who shall be excused, leaving the other excuses to the wise discretion of the Judge, and ordinarily that will not be interfered with. But in the instant case the defendant acting within his rights, being tried for a capital offense, protested and objected to the juror being excused. His peremptory challenges w:ere exhausted before the jury was complete, and he was prejudiced, possibly, thereby. This is not on all fours with State v. Tidwell, 100 S. C. 248, 84 S. E. 778, but the reasoning of the case is applicable here, and the excusing of Jernigan, against the objection of the defendant, was an erroneous exercise of discretion and is a reversible error. This exception should be sustained. The exception is overruled, being without merit. The order of Judge Mauldin is reversed. Judgment of Circuit Court is affirmed, that being the conclusion of the majority of the Court.

Affirmed.