State v. Burton

January 21, 1919. The opinion of the Court was delivered by (1) The defendant was tried under an indictment for murder of Langford at the Fall term of the Court of General Sessions for Newberry county, 1916, before his Honor, Judge Peurifoy, and a jury, and convicted of manslaughter. A motion for a new trial was made and refused, and sentence imposed upon the defendant. After sentence defendant appeals, and by 20 exceptions imputes error, and seeks reversal. These exceptions allege error in presenting the juror No. 17. We think that his Honor was in error in presenting this juror, possibly as he had to sit in the coroner's jury at the inquest, and it is not good practice to allow a juror to sit as a petit juror in any case where he has been on the grand jury that returned the bill of indictment, or a coroner's jury, where the return is that the deceased came to his death by the party on trial, or where the juror has been on a panel that resulted in the Court ordering a mistrial, or a new trial has been granted by the Court after verdict rendered; but in the case at bar the presenting of the juror was not prejudicial, as defendant objected to the juror, and by so doing did not exhaust his peremptory challenges.

The jury was completed without the defendant having exhausted his peremptory challenges, and that excuses any error on the part of his Honor in presenting the juror, and the exceptions complaining of error on the part of his Honor in reference to this juror are overruled.

(2) The next questions to be considered are the exceptions that allege error on the part of His Honor in the admission of evidence as dying declarations. The exceptions complaining of error in this particular are overruled. His Honor had ample authority to rule as he did under numerous decisions of this Court. State v. Johnson, 26 S.C. 155,1 S.E. 510; State v. Bradley, 34 S.C. 136,13 S.E. 315; State v. Lee, 58 S.C. 352, 36 S.E. 706; State v. Head,60 S.C. 520, 39 S.E. 6; State v. Wideman, 96 S.E. 688.

(3) The next questions to be determined are the exceptions which allege the improper admission of evidence as part of the res gestae. These exceptions are overruled under the authorities of State v. Arnold, 47 S.C. 13, 24 S.E. 926, 58 Am. St. Rep. 867; State v. Thomas, 103 S.C. 316,88 S.E. 20; State v. Wideman, supra.

The next exceptions complain of error in allowing the State to improperly introduce evidence in reply. This was a matter largely in the discretion of the Circuit Judge, and we see no erroneous exercise of that discretion. The safer practice is to ask the trial Judge to be allowed to rebut any new matter that is brought out in reply, but in this case we cannot see that the defendant was prejudiced or deprived of any substantial right. These exceptions are overruled. The other exceptions complain of error on the part of his Honor in charging the jury. Taking the charge in its entirety, we fail to see where the defendant was prejudiced to such an extent as to work reversal. He charged the jury in his own language the principles of law governing the case. All exceptions are overruled.

Judgment affirmed.

MESSRS. JUSTICES HYDRICK, FRAMER and GAGE concur.

MR. CHIEF JUSTICE GARY, disqualified.