State v. Tidwell.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] March 15, 1915. The opinion of the Court was delivered by Verdict below for manslaughter; judgment, imprisonment at hard labor for twelve years; bail refused; appeal here by defendant for a new trial.

The defendant is a man past middle life and hitherto of excellent reputation; the deceased was a young man in the prime of life, and unmarried and of feigned chastity; the transaction arose out of the adulterous life of the deceased. the defendant's young daughter, seventeen years of age, and the vengeance of the father thereabout.

The deceased resided in Greenville, had lucrative employment there in the office of a cotton mill, and had good connections.

The defendant resided at Clinton and was a traveling newspaper canvasser; and his daughter lived there with him and her stepmother.

The deceased visited the girl at her Clinton home, and by her account, there first wronged her in her father's house, in December, 1913.

In the next month he wrote to her a letter which contained no suggestions of wrongdoing, but, on the contrary, expressed a tender affection for the girl. In the early months of 1914 the girl fell deep into the mire of sin, and her stepmother with her. They met by appointment the deceased and another man at a house of prostitution kept by a negress in the city of Greenville.

The father got news of the scandal, repaired to the scene, and sought an interview with the deceased, but with no satisfactory result. That interview was at a hotel on Sunday afternoon. On the Thursday following, which was the 12th of March, the defendant sought the deceased at the place of his employment, and shot him to death with a pistol.

The conviction was unlawful, and there must be a new trial.

There are fifty exceptions, which were unnecessary, and much encumber the record. The defendant's counsel has grouped the fifty exceptions into sixteen, and the counsel for the State has stated the alleged errors under four heads. And there are really only four substantial issues, to wit:

(1) Ought the first venire to have been quashed?

(2) Ought the juror, Rogers, to have been presented to the defendant before all the fifteen additional jurors had been summoned to appear and before there had elapsed a reasonable time for them to appear?

(3) Was incompetent testimony allowed? And this includes, was there improper cross-examination of the father and daughter?

(4) Was the defendant's seventh, and refused request, a right statement of the law?

These in their order. The first issue must go against the appellant. The venire first sent out by the clerk to the sheriff directed him to serve thirty-six men to sit as jurors.

The service was not made by a delivery into the hands of the thirty-six men of a subpoena to appear in Court; but the service was made "by mail," and that method consisted in sending the subpoena in a letter to the person, and also an acknowledgment of its receipt; which acknowledgment the person was expected to sign and return by mail to the sheriff.

Of the thirty-six men named in the venire twenty-seven signed the acknowledgment, returned the same to the sheriff, and appeared in Court to serve as jurors.

As many of the nine others as the sheriff could find were served by a delivery into their hands of the subpoena to appear. One of these appeared, so that twenty-eight men named in the venire were present in Court and eight were absent.

The sole contention is, that the sheriff summoned those twenty-seven men in an unlawful manner; that the direction of the statute to summon them "as provided by law" (Code of Laws of S.C. 1912, vol. I, sec. 4026), means the manner prescribed by the Code of Laws of S.C. 1902, sec. 2923. Granting that the sheriff ought to have followed the direction of the Code of 1902, which is not adjudged, his failure to do so was not of substance.

The character of the men named in the venire is not challenged; the successive methods of their selection are not questioned. These are the essential things which dedicate men to jury service. It matters little how they get notice to appear in Court, so they are fit and are rightly selected. They ought to be summoned in formal manner, and all named in the venire who can, with reasonable diligence, be found ought to be summoned, and all ought to attend; but a formal summons is not necessary, if they attend. State v.Crosby, 16 S.C.L. (Harper's Law), 91.

Out of the twenty-eight men who appeared, as many as eleven were presented to the defendant and sworn as jurors; the others all were challenged by the State or by the defendant, and that exhausted the panel.

The testimony shows that the sheriff served, either by mail or in person, all the thirty-six men named in the venire who could be found. The Court then was warranted to proceed under section 4023, vol. I, Code of Laws, 1912, to provide "additional jurors." Upon a proper order to do so, the clerk issued his venire for fifteen additional jurors to appear forthwith. But before the sheriff had "served and returned" the venire, one man specified in it, Rogers by name, who happened to be present in Court was called to the book.

At that instant the defendant had already exercised nine of his ten peremptory challenges; and he was obliged to accept or to reject the man, Rogers, and a rejection, which he did, exhausted his peremptory challenges, so that he was compelled to accept the next name drawn out. And out of this the second issue arises, and it must go against the State. The appellant objected that "it has not been shown to the Court that the fifteen who were drawn here served, and that these names were not put in the hat and the names drawn out so as to give us the opportunity of having the entire fifteen of the venire in Court." The question is governed by section 82 of the Criminal Code of Procedure, sections 4018 and 4023 of the Code of Laws, 1912, the twenty-fifth rule of Court, and by the decided cases.

For accuracy of statement the panel of thirty-six jurors will be referred to as the original panel, and the panel of fifteen jurors will be referred to as the additional panel, for the statute describes them as "additional jurors."

There is no difference betwixt the character of the men on the two panels; there is no difference in the agency by which the names have heretofore been put into and drawn out of the "jury box;" there is no difference in the agency by which the members of each may be brought into Court; there is no difference in the manner by which each panel shall be presented to the accused on his trial. The only differences in the cases are these: One panel is put into the "jury box" and the other panel is put into the apartment of the jury box known as the "talles box;" one panel is summoned by a venire issued before term time and the other by a venire issued in term time.

Manifestly, it would not be lawful for a trial Court to proceed against objection to select a jury to try the accused out of the original panel, before the sheriff had exercised due diligence to summon all the jurors named in the venire, and before such jurors could have a chance to attend. Such a procedure would open the door for an unfair trial; thereby only jurors well known to be friendly to one side or the other might be in attendance. The case is not altered, on principle, that the selection is to be made from the additional panel, although that panel is for the "convenient dispatch of business." The statute, moreover, provides that the "venire shall be served and returned," presumably before or at the appearance of the jurors.

We think the twenty-fifth rule of Court does not alter the case; to "draw one from the names of all the jurors in attendance" must mean in light of reason and the law, jurors in attendance or who have had notice to attend, and the chance to attend.

The case at bar illustrates the peril of proceeding to select jurors before the whole panel to be summoned has been served and has had a chance to appear.

We are mindful of the rule, long since enunciated, that the right to reject a juror does not include the right to select a jury. But in jury trials, like in most transactions of life, there is a lawful element of that which is called chance, for the lack of better name. With fifteen names in the hat, and a boy to draw, who can divine what may come out. If a name pleasing to the defendant he is entitled by the rule of Court and the chance to have it. And if a name menacing to the defendant, and his necessities shut him up to it, he must by the same rule and chance accept it.

We are mindful, too, of the practice of trial Courts for the dispatch of business to proceed to the selection of jurors before all those named in the additional venire have come into Court; but that practice ought to have, and under ordinary circumstances does have, the consent of counsel, except in a pinch like this.

The third issue must go against the State.

The defendant had testified to an interview with the deceased at a hotel on Sunday before the homicide, whereat deceased manifested a hostile and threatening attitude towards defendant. The State called Rickman and Brunson as witnesses; they were not present at the interview, but talked with deceased a few minutes thereafter. These witnesses detailed the declarations of deceased about the colloquy. These declarations had no reference to defendant's testimony about threats or a threatening attitude of deceased at the interview; they referred to what the deceased told defendant about the lewdness of his daughter with other men than himself. They were not admissible under the rule in Chaffin's case (56 S.C. 434, 33 S.E. 454), and they were both irrelevant and incompetent.

The third issue includes the defendant's objection to the State's cross-examination of the father and the daughter. The objection is sustained.

The cross-examination of G.W. Tidwell covers thirty-three printed pages and that of Olive Tidwell covers twenty-three printed pages.

Much of it was directed to an exposure of Olive's lewd life with other men; much of it was directed to an exposure of Mrs. Tidwell's lewd life with other men. There is high warrant for the belief that a father is most anxious about a prodigal child. That this child was lost in the ways of sin was no reason why she should be exposed to the contempt and ridicule of the jury; and was no reason why a father's solicitude about her should be dulled.

The character and life of the wife, Mrs. Tidwell, had no relevancy to the issues that were being tried; yet not only was the defendant closely questioned about his wife, but a witness, Woods, was produced to swear to his illicit intercourse with Mrs. Tidwell. The testimony was incompetent.

A witness, Bussey, testified to his illicit intercourse with Olive, in contradiction to her denial of the fact. The testimony was irrelevant and incompetent.

A witness, Gosnell, testified that Mary Walker, the negress proprietor of the bawdy house, had told him that the deceased had not engaged the rooms at her house. This was to contradict Mary, who had sworn that deceased did engage the rooms. This testimony was irrelevant and incompetent.

There is no need to further discuss the testimony, or to point with detail to the errors in it; they are manifest, for they infringe the plainest rules of evidence, and need not be suggested to guide in the next trial of the case.

It is sufficient to say that the testimony which has been referred to, and the cross-examination which has been recited, were sufficient to prejudice the defendant's cause, and were in denial of that fair trial to which he is entitled.

The fourth issue must go against the defendant. Let the seventh request be reported. The true rule is, that he who pleads unsoundness of mind in excuse for a homicide must prove such unsoundness by a preponderance of the evidence, or by so much evidence as will raise a reasonable doubt about the defendant's guilt of the offense charged. State v. McIntosh, 39 S.C. 107, 17 S.E. 446.

The judgment below is reversed, it is so ordered, and a new trial must be had.