State v. Vaughn

September 20, 1913. after stating the facts as above, delivered the opinion of the Court: The first, second, third, and fourth exceptions will be considered together.

There are two reasons why these exceptions cannot be sustained: (1) The defendant's attorneys have failed to show an abuse of discretion on the part of his Honor, the presiding Judge, and (2) the right to insist upon the errors assigned, was waived when the defendant withdrew his plea of "not guilty."

The fifth and sixth exceptions will not be considered, for the reason that they were abandoned.

The recent case of the State v. Malloy, ante 441, which was decided by this Court, shows that the seventh exception cannot be sustained.

The eighth, ninth, and tenth exceptions will be considered together. Conceding that the defendant would have been entitled to all the rights claimed in these exceptions, if he had insisted upon them, in the manner provided by the rules of practice, nevertheless, it clearly appears that he waived such rights in expectation that the jury would recommend him to the mercy of the Court, thereby enabling him to escape the death penalty. At the time he withdrew his plea of "not guilty" he had no reasonable grounds for supposing that the jury would render any other verdict than that of "guilty," and the method which he adopted, it would seem, might naturally have been expected to increase his chances of appealing to the sympathy of the jury, and thereby induce them to recommend him to the mercy of the Court.

There is no doubt that the defendant had the right to waive compliance with the technical forms of law, as to the manner in which his plea should be accepted.

"Waiver is voluntary, and implies an election to dispense with something of value, or forego some advantage, which the party waiving it, might at his option have demanded or insisted upon. A waiver takes place, when a man dispenses with the performance of something which he has a right to exact. A party may waive a constitutional as well as a statutory provision for his benefit, as a trial by jury, though that mode is guaranteed to him by the Constitution; and when waived by such party, he will be estopped from setting them up, or claiming them." Herman on Estoppel Res. Judicata, vol. 2, page 954.

The same author, at page 958, says: "A defendant has a constitutional right to a speedy trial, yet he may waive this provision by obtaining a continuance. He may plead guilty, which generally dispenses with a jury trial." "* * * A defect in the Constitution or organization which does not prevent the presence of twelve competent jurors, by whose votes the indictment is found, and which could have been cured, if the attention of the Court had been called to it at the time, or promptly remedied by the empanelling of a competent grand jury, is waived if the defendant treats the indictment as sufficient, pleads not guilty, and goes to trial on the merits of the charge. There is good sense in this conclusion. The indictment is the charge of the State against the defendant, the pleading by which he is informed of the fact, and the nature and scope of the accusation. When the indictment is presented, that accusation made, that pleading filed, the accused has two courses of procedure open to him. He may question the propriety of the accusation, the manner in which he has been presented, the source from which it proceeds, and have these matters promptly and properly determined, or waiving them, he may put in issue the truth of the accusation, and demand the judgment of his peers on the merits of the charge. If he omits the former and chooses the latter, he ought not, when defeated on the latter, when found guilty of the crime charged, to be permitted to go back to the former, and inquire as to the manner and means by which the charge was presented." The foregoing language and that from Herman on Estoppel and Res Judicata were quoted with approval in the case of the State v. Faile, 43 S.C. 52,20 S.E. 798, in which there was an appeal from the sentence of death.

Nothing was omitted during the trial of which the defendant has just cause of complaint. He, his attorneys, the presiding Judge, and the jury, unquestionably understood fully the nature, force and effect of the plea made by the defendant; he was represented by exceedingly able counsel; the plea was not interposed until two days after the commencement of the trial; the presiding Judge clearly stated the nature, force and effect of the plea, to which neither the defendant nor his counsel made any objection; the testimony which had then been introduced indicated that there were no reasonable grounds for hoping that the jury would render any other verdict than that of guilty.

These exceptions are, therefore, overruled.

It is the judgment of this Court that the judgment of the Circuit Court be affirmed and that the case be remanded to that Court for the purpose of having another day assigned for carrying into execution the sentence of death, imposed upon the defendant.

The remittitur in this case is held up so that appellantmay apply for writ of error to United States Supreme Courtif so advised, notice of which intention has been given.