State v. Kelley

24 S.E. 45, 45 S.C. 659, 1896 S.C. LEXIS 24

• Court: Supreme Court of South Carolina
• Decided: March 6, 1896
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

The defendant was indicted for an assault and battery with intent to kill one J. F. Poison. The jury rendered a verdict of guilty, with a recommendation to the mercy of the Court. From the judgment rendered upon this verdict defendant appeals, upon the following grounds:

“1. Because the petit jury charged with the trial of the case, after long deliberation, on three separate occasions, with long intervals of time intervening, notified his Honor, the presiding Judge, that they could not agree, and desired to be discharged from the consideration of the case, and on each occasion his Honor directed them to be detained in the jury room without their consent first had and obtained.

“2. Because after the jury had remained one night, on the day following they were given but one meal, and that breakfast, though remaining in the jury room until late in the second night.”

The facts as to what occurred after the jury, charged with trial of this case, had retired to their room to consider the same, must be gathered from the affidavit of the deputy sheriff, R. J. Scarborough, who, owing to the sickness of the sheriff, was acting as sheriff at the time, as well as the statement of the presiding Judge, which affidavit and statement are set out in the “Case,” and should be incorporated in the report of this case. While these two statements differ in some respects, there are certain facts as to which there is no conflict, to wit: That the jury retired to their room about 4 o’clock P. M. of the day of the trial, furnished with an envelope, “with the usual instructions about bringing in a sealed verdict;” that about 8 o’clock P. M. of that day, the jury were furnished with supper, by order of the Judge, and also with breakfast the next morning, and the deputy was told by the Judge “to give them nothing more to eat, that they would never agree if we kept on giving them sumptuous meals every meal time;” that the jury remained in the room from 4 o’clock P. M. of one day until some time — “half hour or probably an hour” — after 6 o’clock P. M. of the second day, when the jury, by direction of the Judge, came into the court room, and finding that the jury had failed to agree on a verdict, the Judge asked “if the trouble was a matter of law or of fact,” to which the foreman replied: “Well, we don’t agree,” whereupon the Judge said: “If it was a matter of law, I could charge you again, but since it is a matter of fact, I can’t assist you, for you are the sole judges of the facts,” adding: “I think j'ou can agree; retire to your room.” All of the jury arose, and the foreman said: “We have been in the room twenty-four hours and can’t agree;” to which the Judge replied: “Well, retire and consider the case.” The jury retired to their room, and after remaining there some time in the night of the second day — how late does not appear — they came out with a sealed verdict, which was published at the opening of the Court the next morning. From this statement of undisputed facts, it is very difficult, if not impossible, to resist the impression that the verdict in this case was not the result of calm and deliberate reflection, which every verdict ought to be. As was well said by that great Judge, the late Chief Justice O’Neall, in delivering the opinion of the Court in State v. McKee, 1 Bail., at page 653: “The proposition that the Judge can have them (the jury) conveyed from Court to Court, on his Circuit, until they agree, is at war with all our notions, either of their rights or of the rules of justice and propriety. It has never been acted on in this State, and I have no hesitation in saying that it is not law. It is equally absurd to say that the jury must be starved into a verdict. Their verdict ought to be the result of calm and deliberate reflection, and not force. If, therefore, after a sufficient time has been afforded them to discuss the subject and come to a conclusion, they cannot agree, they ought to be discharged.” But when, in addition to these undisputed facts, we look to the additional facts stated in the affidavit of the deputy sheriff, this impression becomes an absolute conviction. For it there appears that the jury, after having remained in their room for a sufficient time to consider the case, which from its nature could not have been complicated, in all of its bearings, made repeated efforts to obtain their discharge upon the ground that they could not agree. 'The fact that these repeated efforts were not all communicated to the presiding Judge, as would seem to be the case from his statement, cannot affect the question. The jury had no lawful means of communicating with the presiding Judge, except through the officer in whose charge they were placed; and the affidavit of that officer shows conclusively that every effort in the power of the jury was made to obtain their discharge, which, under a proper construction of the statute, they were entitled to demand; and if these repeated requests and demands failed to reach the Judge, as he says, that, surely, was no fault of the jury, and they should not have been punished and practically forced to a verdict, for a fault to which they in no wise contributed. To say nothing of the rights of the accused, and looking at the question from the higher standpoint of the rights of juries, and the still higher ground that it is the duty of the courts of justice to promote the ends of justice by a due and proper observance of all the forms and rules prescribed for its administration, I cannot think that a verdict obtained in the manner in which this was should be allowed to stand. Of course, I must not be understood as intending to cast any — the slightest' — -imputation upon the motives of the presiding Judge, or to attribute to that high official any intentional impropriety; for, on the contrary, I am quite willing to assume that the course which he pursued was prompted solely by a laudable desire to prevent the delay and expense of a mistrial. But I am bound to say that I cannot think that the course pursued in this case was legally proper, and am, therefore, satisfied that there should be a new trial.

If it should be said that the question as to whether a jury, failing to agree on a verdict within a reasonable time, should be discharged, is addressed solely to the discretion of the presiding Judge, the answer is of a twofold character. 1st. That since the adoption of the statutory provision incorporated in the Revised Statutes as section 2409, the question is no longer a question of discretion, but has become one of legal right, for that statute provides that: “When a jury, after due and thorough deliberation upon any cause, return into court without having agreed upon a verdict, the Court may state anew the evidence, or any part of it, and explain to them anew the law applicable to the case, and may send them out for further deliberation; but if they return a second time without having agreed upon a verdict, they shall not be sent out again, without their own consent, unless they shall ask from the Court some further explanation of the law.” So that it will be seen from the words which I have italicized, that, in a certain contingency, which, it seems to me, practically occurred in' this case, the statute is imperative, and expressly forbids the Judge from sending the jury out again, without their own consent, unless they shall ask for further instructions as to the law, of which there is, and can be, no pretense in this case, as is fully demonstrated by the emphatic declaration of, the foreman, made as the jury arose to retire to their room, as directed by the presiding Judge: “We have been in the room twenty-four hours and can’t agree.” While it is true that the jury did not, in fact, return to the court room a second time without having agreed upon a verdict, yet it is very manifest from the affidavit of the deputy sheriff, that they made repeated unsuccessful efforts to do so, and were only prevented from effecting, that purpose by the failure of that officer to communicate their wishes to the Circuit Judge, as he says in his statement, by whose authority alone could they be permitted to leave the jury room; and to put such a rigid construction upon this purely remedial statute, as to hold that, because the jury did not actually return into the court room a second time, although they did make repeated efforts to do so — because they did not do what they had no power to do without an open violation of the authority of the Court — would be, not only violative of one of the fundamental rules of statutory construction, but would render this benignant statutory provision, designed to prevent the harsh and unreasonable exactions imposed upon jurors — innocent persons — -by the stern and rigorous rules of the common law, wholly nugatory, and would place it in the power of the officer charged with the custody of the jury, to force, from an unwilling jury, a verdict which was not the result of calm and deliberate reflection, but of force or imposition by an officer of the law. It may be that the statutory provision above quoted is. unwise and impolitic, though upon that point differences of opinion may well exist, yet it is quite sufficient for this Court to know that such is the written law, and as such it should and must be respected in spirit as well as in letter. It may also be possible, though it is somewhat difficult to credit the statement, that the law is regarded as so impolitic as that studious efforts are made by some members of the bar to conceal from juries the rights conferred upon them by this statute in order to prevent mistrials. But surely this can furnish no argument to induce this Court to disregard the plainly written law, or even, by strained construction, to render nugatory its provisions. If the statute is unwise or impolitic, the remedy must be sought at the hands of another department of the government, whose province this Court has no power or disposition to invade. 2d. But even if the question could be regarded as addressed solely to the discretion of the Circuit Judge, it is very manifest from the showing made in this case, that he did not have the facts before him necessary'' to guide his discretion aright, which have been presented to us in the “Case” as prepared for argument here; and hence this Court has a right to presume that if the facts as presented here had been presented to the Circuit Judge at the proper time, his action would have been different from what it was. The case, therefore, presents an instance of abuse of discretion, not due, however, it is a pleasure' to state, to any improper conduct upon the part of the Circuit Judge, but due solely to the want of light necessary to properly guide his discretion.

There is one remark contained in the statement of the presiding Judge which should not pass unnoticed. After saying that it was not his intention that the jury should suffer for food, or anything reasonable or proper for them to have, he adds these words: “I was informed afterwards that there was only one who stood out, and that the other eleven-were delighted when the rations were stopped.” How such information could have been properly communicated to the presiding Judge, it is impossible to conceive; for, by reference to the case of Smith v. Culberson, 9 Rich., at page 111, and the authorities there cited, it will be seen that a court of justice has always set its face sternly against any invasion of the privacy of the jury room; and very properly this is so, as nothing is better calculated to destroy independence of thought and action in a juror, and tends to sap the very foundation of the great right of trial by jury.

The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial.