State v. Gaymon , 44 S.C. 333 ( 1895 )

The opinion of the court was delivered by

Me. Justice Gaey.

The defendant was convicted of perjury at the June, 1894, term of the Court of General Sessions for Clarendon County, and thereon made a motion before the presiding judge for a new trial, which was refused. He was then sentenced to one year at hard labor in the State penitentiary. The appeal to this court is based upon two exceptions, which will be incorporated in the report of the case, and raise the single point, whether his honor, Judge Norton, erred in charging the jury that they must not allow their personal knowledge ,of defendant’s mental condition to enter into their judgment in arriving at a verdict.

1 2 The question as to the mental condition of the defendant was not a collateral circumstance, but a material fact in issue, upon which the jury was called upon to pass. Under these circumstances, it would be extremely dangerous to allow the jury to find a verdict upon facts first communicated to them by jurors in the jury room. Such a verdict would be contrary to that part of their oath where they swear to give a true verdict according to the evidence. The practice for which the appellant contends, would deprive a party to the cause of the very important right of cross-examination. This is not a case involving the right of a juror to state facts in the jury room, touching the credibility of a witness, as was the case of McKain v. Love, 2 Hill, 506, in which the distinction herein stated was pointed out by the court, which used the following language: “The oath usually administered to the jurors in the common pleas, well and truly to try the issue joined between the parties ‘and a true verdict give according to the evidence,’ contains a very correct summary of the law on this subject. The jury are bound to give their verdict according to the evidence, and what is or is not competent evidence, belongs to the court, and not to the jury, to determine. Generally speaking, therefore, a verdict founded on facts first disclosed in the jury room would be bad, although the facts are known to one of the jury; because it is unfair not to give the party against whom they operate an opportunity of repelling or explaining them. In an anonymous case in Salk., 405, p. 3, it is said, that if a juror know’, of his own knowledge, any thing material to the matter in issue, the fair way is to tell the court, so that he may be sworn as a witness.” See, also, State v. Jones, 29 S. C., 201.

It is the judgment of this court, that the judgment of the court below be affirmed.