State v. Benton , 85 S.C. 107 ( 1910 )

March 3, 1910. The opinion of the Court was delivered by Defendant Benton was convicted in his absence at March term, 1909, for violation of the dispensary law, and a sealed sentence was left by Judge DeVore, who presided at the trial. Defendant appeared at the following term and the sentence was opened by Judge Shipp, whereupon defendant made a motion in arrest of judgment upon the ground that the writ of venire that brought the petite jury into Court that convicted defendant was not sealed. Judge Shipp, upon this ground, arrested judgment and granted a new trial by order dated July 10, 1909.

The State appeals.

In the case of State v. Lazarus, 83 S.C. 215, 63 S.E., Rep., 270, filed shortly after the order of Judge Shipp, this Court held that the absence of a seal to the writ ofvenire is an irregularity within the meaning of sec. 2947, Civil Code, 1902, which provides:

"No irregularity in a writ of venire facias or in the drawing, summoning returning or empannelling of jurors, shall be sufficient to set aside the verdict, unless the party making the objection, was injured by the irregularity or unless the objection was made before the returning of the verdict."

The order appealed is, therefore, reversed and the case is remanded to enforce the judgment rendered by Judge DeVore.