State v. Mittle , 120 S.C. 526 ( 1922 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] July 5, 1922. The opinion of the Court was delivered by The setting of this case with its events in a scene of indictment charging him with the murder of one J.H. Patterson on November 14, 1920, and was sentenced to imprisonment for a term of nine years.

The appellant was convicted of manslaughter under an blood, gathered from the lips of the defendant himself, puts him in an attitude of wrong, and leads to the conclusion that the jury took a merciful view of his offense, if they were convinced, as their verdict shows, that his plea of self-defense was not sustained.

Prior to his relations with Mrs. Star Jackson (daughter of Mr. A.F. Sain), a widow, and a sister-in-law of the defendant, he had been twice married. His first wife died, leaving several small children. At that time Mrs. Jackson was employed in the bank of which the defendant was cashier. Friendly, if not affectionate, relations, perfectly legitimate, sprang up between them, and marriage was discussed, but abandoned. The defendant married a young woman from Charleston, but lived with her only a few years. They separated, and he had begun divorce proceedings, claiming to be a resident of Augusta, Ga. The defendant removed to Greenville, but made occasional business visits to his former home. Upon one of these visits in October, 1920, he insisted upon marriage with Mrs. Jackson. He knew that his divorce had not been perfected, but carried her to a magistrate, where the ceremony was performed without a license. The couple then went to the home of Mrs. Jackson's family, reported their marriage, and spent the night there. The next day they motored to Columbia and spent the night at a hotel, going from there to Greenville, where she was installed as the mistress of his home. In the meantime Mr. and Mrs. Sain, having learned that there was doubt as to the divorce, went to Greenville and interviewed the defendant. He admitted that the divorce had not been perfected, and Mr. and Mrs. Sain returned to Rowesville, their home, taking their daughter with them, the defendant accompanying them as far as Columbia. The following week the defendant returned to Rowesville and went to Mr. Sain's house to see Mrs. Jackson. He was not allowed to see her, in which exclusion Mrs. Jackson actively participated, and returned to Greenville. He had led her into a state of concubinage knowingly. He says that she knew that the divorce had not been perfected, a statement hardly supported by her determination not to see him. During the week of the homicide he returned to Orangeburg and was again unable to communicate with Mrs. Jackson. He started to return to Greenville, got as far as Columbia, and returned the night of the homicide. When he reached the Sain house about 8 p.m. an automobile was standing at the gate. He testified that he did not know that Patterson was there, thought Mrs. Jackson was having company, and determined to wait until the company left and then have an interview with her at the window, as he had been forbidden to enter the house. He took several short runs in his car, "killing time," and walked around for about an hour waiting for the company to leave. About 11 o'clock Patterson came out of the front door, and begged Mrs. Jackson to go with him. She refused. He put his arms around her and kissed her and went to his car. The defendant was then standing near Patterson's car, and when Patterson turned on the lights he saw the defendant and asked, "Who is that?" The defendant answered, giving his name, and testified that Patterson with a threat started to attack him, when he fired rapidly, inflicting fatal wounds. Patterson had a pistol in his overcoat pocket, but did not draw it. The evidence tended to show that the ground around the car had been tramped down to some extent, as by some one waiting and the tires of the car had been cut. On the last trip the defendant had seen Patterson on the street and had remonstrated with him for calling upon "my wife." Patterson promised to desist. He appeals to this Court upon 14 exceptions which raise various questions. They will be considered in their logical order.

1. Was there error in refusing the defendant's motion to quash the entire venire of petit jurors upon the ground that all women electors were excluded from the jury box when it was made up in December, 1920? The appellant's contention is that the jury commissioners of the County of Orangeburg deliberately failed and refused to select any women for jury duty, although there were many women within the County of Orangeburg qualified for jury service, but selected only men, which was and is contrary to the rights of the defendant under the Constitution of the United States and the State of South Carolina. This contention necessarily rests upon the propositions: (1) That the Nineteenth Amendment confers upon women the right of suffrage; and (2) that the right or privilege of, or amenability to, jury service, is implied in the constitutional grant of the right of suffrage. Neither of these propositions can be sustained. The amendment is as follows:

"The right of the citizens of the United States to vote shall not be denied or abridged by the United States or vote any State on account of sex."

It is a popular, but a mistaken, conception that the amendment confers upon women the right to vote. It does not purport to do so. It only prohibits discrimination against them on account of their sex in legislation prescribing the qualifications of suffrage, a very different thing from conferring the right to vote, which is left to legislative enactment, restrained only by the inhibition against the prescribed discrimination.

The Nineteenth Amendment is in the precise terms of the Fifteenth, with the substitution of the word "sex" for the words "race, color or previous condition of servitude." It has been repeatedly held by the Supreme Court of the United States that the Fifteenth Amendment does not confer upon colored men the right of suffrage; it only forbids discrimination. U.S. v. Reese, 92 U.S. 24;23 L.Ed. 563. See other authorities cited in 9 Rose's Notes, p. 56. The Nineteenth Amendment must, of course, receive the same construction. If, therefore, the privilege of jury service can be implied from the right of suffrage, which we deny, it could not be claimed as a constitutional right unless the right from which it is derived is conferred by the Constitution.

Can it be said that the right to jury service is implied from the grant of the right of suffrage, assuming that the effect of the amendment is to confer that right?

The right to vote and eligibility to jury service are subjects of such diverse characteristics and demanding such different regulations that it is impossible to consider the one as implied in the other. To hold that one who is a qualified elector is ipso facto entitled to jury service is to deprive the Legislature of the right to prescribe any other limitation upon the right to jury service. It could not prescribe the age limit, the sex, or the mental, moral, or physical qualifications of a juror, matters which appeal so strongly to the judgment, in prescribing the fitness for their responsible duty, with due regard to the sensibilities and delicacy of feeling of those involved.

The Constitution of Wyoming (Const, art. 6, § 1) provided:

"The rights of citizens of the State of Wyoming to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall equally enjoy all civil, political and religious rights and privileges."

In the case of McKinney v. State, 3 Wyo. 719,30 P. 293, 16 L.R.A. 710, the defendant moved to quash the venire upon the ground that the Constitution gave women the right to serve as jurors, and that, as only men had been drawn, the venire was illegal. The Court held against the contention, saying:

"The right to vote and hold office does not include the right, if right it may be termed, to serve as a juror."

In Strauder v. W. Va., 100 U.S. 310; 25 L.Ed. 664, a case involving the Fifteenth Amendment, the Court said:

"We do not say that within the limits from which it is not excluded by the amendment a State may not prescribe the qualifications of its jurors and in doing so make discriminations. It may confine the selection to males, to freeholders, * * * to persons within certain ages, or to persons having educational qualifications."

See, also, State v. James (N.J. Err. App.) 114 A. 553, 16 A.L.R. 1141, where the same question arose and is quite interestingly discussed.

Another ground for denying the right of the defendant to raise the question of the exclusion of women from the jury lists is the fact that he does not belong to the excluded class. State v. James (N.J. Err. App.) 114 A. 553, 16 A.L.R. 1141; McKinney v. State, 3 Wyo. 719,30 P. 293, 16 L.R.A. 710, and cases cited in the latter case.

Not being implied in the Nineteenth Amendment, the right of jury service by a woman is expressly denied by the State Constitution (article 5, § 22). "The petit jury of the Circuit Courts shall consist of 12 men." The further provision in that Section, "Each juror must be a qualified elector," does not confer upon every elector, male or female, the right to jury service. It means that every juror must be a qualified elector, not that every qualified elector shall be a qualified juror.

It is understood that our discussion and decision is limited to a construction of the Nineteenth Amendment. The effect of the Fourteenth Amendment upon a similar contention raised by a woman upon trial is not intended to be decided. As indicated above the defendant is not entitled to raise this question under the Fourteenth Amendment for the reason that he is not a member of the alleged excluded class.

2. Was there error in refusing to quash the entire venire of petit jurors upon the ground that all of the jurors were served by mail, and because two of the jurors, P.E. Gibson and L.T. Gleaton, who did not appear, had not been personally served? This question, though raised in the exceptions, has not been discussed in argument, and will not for that reason be considered.

3. Was there error in refusing to hear testimony to show that the juror L.T. Gleaton had not been served and was not a competent juror? The same thing may be said of this question.

4. Was there error in not sustaining the defendant's objection to the competency of certain jurors who had not paid their poll and property tax six months prior to the date of the trial? As the appellant more concisely states the question:

"Can a person perform jury service over objection who has not paid his taxes six months prior thereto?"

The qualifications for jury duty and for voting are not the same. The Constitution (article 5, § 22) provides:

"Each juror must be a qualified elector under the provisions of this Constitution, between the ages of 21 and 65 years and of good moral character."

We note at once that his qualifications must be more extensive than that of a qualified elector, that is in respect to age and character; so that, although he may be a qualified elector, he may not be a competent, in the sense of a qualified, juror.

A qualified elector is a citizen, male or female, of the State, 21 years of age and upwards, not laboring under the disabilities named in the Constitution and possessing the qualifications required by it (article 2, § 2), among which, as this Court has held in Mew v. Railroad Co.,55 S.C. 90, 32 S.E. 828, is registration; so that in short a qualified elector is a registered elector (though in passing the writer feels constrained to say that in his opinion the logic of Chief Justice McIver's dissent to the proposition that registration is essential to constitute one a qualified elector is unanswerable). Assuming, then, that registration is essential to the perfected status of a qualified elector, then it is clear that under the section first quoted a juror must be a registered elector, and that he cannot be registered without complying with the requirements for registration. It will be noted that the requirements for registration do not include the payment of taxes; that is specifically made a condition for voting. The elector is a qualified elector when he shall have been registered. He, as a qualified elector, may exercise the right to vote upon compliance with the requirements as to payment of taxes. If he shall have been registered prior to January 1, 1898, he remains a qualified elector for life, regardless of the payment of taxes, but he cannot exercise the right of voting without complying with these requirements. If he shall have been registered after January 1, 1898, he remains a qualified elector until the next enrollment period, similarly regardless of the payment of taxes and subject to the same conditions as to voting. If any elector of either class, within the period in which he remains a qualified elector, desires to vote, he must comply with the requirements as to the payment of taxes; but his status as a qualified elector is not destroyed by his nonequipment for voting at a particular election. Upon refusal of his right to vote for such nonconformity, he leaves the ballot box as a qualified elector still, and without further ceremony may equip himself for voting at a subsequent election; otherwise he would be obliged to renew his application for registration after every election at which he was not equipped as a voter, and the provisions of the Constitution as to remaining a qualified voter for the periods indicated would be annulled.

5. Was there error in not sustaining the defendant's objection to the competency of the juror W.D. Blanton upon the ground that upon his voir dire examination it was shown that he was not an indifferent juror?

The matter of the indifference of the juror is in the discretion of the presiding Judge. It appears from the examination that the juror had at the outset an exceedingly mild impression of the facts of the case from what he had heard and read; that he stated that he would, if selected as a juror, absolutely leave that impression behind and be governed solely by the testimony from the stand. It is true that upon a long and tedious examination he made statements in reference to the preponderance of the testimony necessary to efface the impressions formed largely in the words of examining counsel, which, taken alone, would possibly disqualify him, but the general trend of his examination impresses us with the conviction that he was conscientious and honest and would be governed by the testimony on the trial alone. The Circuit Judge seems to have been of that opinion also, and wisely exercised his discretion in having him presented.

In addition to this it is settled by the decisions of this Court as follows, quoting from State v.Williamson, 65 S.C. 242, 43 S.E. 671:

"The first six exceptions complain of error in not excluding as incompetent certain jurors who, when examined upon their voire dire, said they had formed and expressed their opinion as to the guilt or innocence of the accused, and that it would require evidence on the part of the defendant to remove that impression from their minds. Section 2944, Code 1902, provides the Court, on motion of either party to suit, shall examine any person called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein; and further provides that the juror shall be placed aside "if it appears to the Court that the juror is not indifferent in the cause. Numerous cases from State v.Dodson, 16 S.C. 450, to State v. Robertson, 54 S.C. 151, construing the statute, declare that it invests the Circuit Court with exclusive power to determine whether a juror, after examination on his voir dire, is indifferent in the cause. Whether a juror is indifferent in the cause is a question of fact which is not reviewable in this Court, unless perhaps it should appear that the conclusion of the Circuit Court is wholly without any evidence to support it. In this case, while it is true the jurors when examined said they had formed or expressed an opinion as to the guilt or innocence of the accused, and that it would require evidence to remove that impression from their minds, they also declared that they were not conscious of any bias or prejudice for or against either of the defendants, and would decide the case according to the evidence, uninfluenced by such opinion. It cannot, therefore, be said that the conclusion of the Circuit Court was without any evidence to support it."

6. Was there error in not excluding the testimony of A.F. Sain as to a conversation with the defendant at Greenville several weeks prior to the homicide? The exception points out no specific error and for that reason need not be considered; but, in view of the entire circumstances of the case, there was no error in allowing Sain to detail the conversation with the defendant. There was nothing in it that the defendant did not admit when he took the stand.

7. Was there error in not excluding the testimony of Emma Eugenia Sain, as to a conversation with the defendant at Greenville several weeks prior to the homicide? The record does not disclose that any objection was made to the testimony of the witness as to this conversation, and it cannot therefore be made the ground of an exception.

8. Was there error in not excluding the testimony of Emma Eugenia Sain detailing a conversation overheard by her between the defendant and her father, J.C. Whetstone, several weeks before the homicide? The witness Mrs. Sain, mother of Mrs. Jackson, with whom the defendant had gone through a marriage ceremony which he knew was invalid, testified that after her return from Greenville, whither she had gone to bring her daughter home after knowledge of the fictitious marriage ceremony, Mittle came to her house looking for Mrs. Jackson. While he was there Mr. Whetstone, the aged father of Mrs. Sain, came into the room and inquired what the trouble was. The question was asked the witness, "What did your father say?" Her answer was interrupted by objection and a lengthy colloquy. The record does not show that Mrs. Sain was allowed to detail any conversation between Mr. Whetstone and the defendant, only that Mr. Whetstone ordered Mittle off the place, and forbade him to come there.

9. Was there error on the part of the Circuit Judge in charging the jury, "Circumstantial evidence, when properly made out, is as good as direct testimony; the same being a charge upon the facts and an instruction as to the weight to be given certain testimony? Assuming that the charge complained of was erroneous, which we do not at all concede, the verdict of manslaughter renders the fault innocuous. The circumstantial evidence in the case indicated that some one had been lying in wait, and had made sure of his victim's inability to escape by cutting the tires of the car, putting it out of commission. If the jury had believed that the defendant had done this and for the purpose indicated, they could not have escaped returning a verdict of guilty of murder. It must be assumed, then, from their verdict of manslaughter, either that no such circumstances existed, or that the defendant was not connected with them.

10. Was there error in refusing a certain request to charge preferred by the defendant?

The fourteenth exception is as follows:

"Because there was error in his Honor refusing to charge the jury the following request of the defendant made in writing: Counsel for the State in argument states: "A verdict of not guilty in this case would mean an approval of an adulterous intercourse between the defendant and Mrs. Jackson." By request of the counsel for the defendant I charge you: You are not trying the question as to whether the relations between the defendant and Mrs. Jackson were adulterous or illegal; that is not the question you are trying in this case at all; but, on the contrary, you are only passing upon the question whether or not the defendant should be convicted of the murder of Patterson or be acquitted under his plea of self-defense — the error being that the defendant was entitled to this request in order to correct the statement of counsel in argument, which statement was beyond and not within, the record, and, if not challenged, would have left it open to the jury to pass upon a question and offense not charged in the indictment."

The request was fully covered by the Circuit Judge in his charge:

"I charge you that you are not trying the defendant, Mittle, for bigamy or an unlawful marriage. You are trying him for murder under the indictment in this case and for no other alleged crime or offense."

The judgment of this Court is that the judgment of the Circuit Court be affirmed.

MR. CHIEF JUSTICE GARY concurs.