Opinion
12535
December 1, 1928.
Before P.F. HENDERSON, Special Judge, Hampton, Fall term, 1927. Reversed and remanded.
Robert Fleming was convicted of murder, and he appeals.
In connection with Exception 4, which was sustained by the Court, the following is taken from the statement appearing in the Transcript of Record.
During the cross-examination of the defendant, the Solicitor requested him to stand up by the rail of the jury box which was but a few feet from and on the same level as the witness chair, and then requested one of the jurors, Mr. Carter, a man apparently weighing about one hundred and twenty-five to one hundred and thirty pounds, apparently about five feet, four inches to six inches in height, and apparently about fifty-five to sixty years of age, to stand up. Mr. Carter stood up staying within the rail of the jury box.
As soon as it was apparent that a comparison of the relative sizes of the defendant and of the deceased with the use of a juror was intended by the Solicitor, Mr. Mayfield immediately objected as follows:
"Mr. Mayfield: Your Honor please. I submit the Solicitor has no right to take the juror and stand him by the side of the defendant, and we sincerely object on the part of the defendant."
While Mr. Mayfield was making his objection the Court motioned the juror and the defendant to their respective seats which they immediately resumed; and immediately upon Mr. Mayfield's making his objection the Court ruled as follows:
"The Court: I am of the opinion that it would have been much better to have taken someone other than the juror, and if there had been any objection on the part of counsel for defense, I would have stopped the procedure."
The following colloquy then ensued:
"Mr. Mayfield: We did not know what he was going to do.
"The Court: The Court did not know, either.
"Mr. Mayfield: We wish to enter our protest and objection to it."
All parties, except the Solicitor, then being seated, the Solicitor asked the defendant another question after which the Court, referring to the attempted comparison of the size of the juror with the defendant, interrupted the Solicitor in his examination, and instructed the jury as follows:
"The Court: Mr. Solicitor, just a quarter of a minute. I will say to the jury that they will consider incompetent all of the comparison that may have been made and will disregard that incident."
All references in the printed record to the Foreman is an error. The juror in question was Mr. E.W. Carter, not the Foreman. In the objection and in the ruling of the Court the language used was as to "the juror" and not to "the Foreman."
The Solicitor then proceeded with his examination of the defendant.
Messrs. George Warren, Chas. B. Searson, S.G. Mayfield, John B. Nix, and Walter W. Wright, for appellant, cite: Leading questions not allowed: Wig. On Ev. (2d Ed.) Secs. 769, 771, 780. Court should carefully inquire into prejudicial atmosphere of trial here: 164 U.S. 546. Use of juror to compare size of deceased and defendant unfair, reversible error: Sec. 18, Ar. 1, Const.; 69 So., 1001. Invidious comparisons by Solicitor of accused prejudicial: 111 So., 763; 112 So., 83; 212 N.W., 757. Fact that defense counsel committed impropriety in making remarks is no excuse for prosecution to make similar remarks: 148 Cal., 334; 117 Cal., 647; 14 Ga. A., 568; 247 Ill., 130; 115 Ga. 715; 113 Ga. 1062; 10 Ga. A., 805. Such statements warrant reversal: 55 App. Div. N.Y., 373; 59 Colo., 280; 28 Ky. L., 146; 88 Mich., 456; 8 Okla. 226; 41 Tex., 21; 156 N.E., 310. Charge on self defense error here: 164 U.S. 546. Improper for Grand Juror to appear as chief prosecuting witness: 3 Wend., 313; 6 Wend., 386; Wharton Cr. Law, 120; Barr's Trial, 38. Offensive words must be considered in determining who started conflict: 164 U.S. 546. Charging defendant with carrying concealed weapon, prejudicial: 51 Ore., 136. As to self defense: 94 S.C. 401; 13 S.C. 464; 73 S.C. 282; 13 R.C.L., 122; 30 C.J., 205; 90 S.C. 293; 113 S.E., 617; 1 Marr's Cr. Jur. of La., (2d Ed.), Secs. 57, 127; 38 La. Ann., 536; 120 La., 187; 45 La. Ann., 569; 104 La., 580; 30 Ann. (La.), 1323; 32 Ann. (La.), 1086; 26 A., 582; 5 A.P., 489; 50 A.P., 92; 46 A.P., 1524; 45 A., 14.
Solicitor Randolph Murdaugh, for respondent, cites: Improper conduct on part of attorney not reversible error if Court directs jury to disregard same: 75 S.C. 342. As to admissibility of dying declaration: 43 S.C. 52; 56 S.C. 360; 58 S.C. 41; 79 S.C. 229; 80 S.C. 332; 87 S.C. 551; 93 S.C. 502; 43 S.C. 148; 134 S.C. 361; 26 S.C. 152; 2 Hill, 619; 58 S.C. 352. Same, question for Court to decide: 87 S.C. 550; 79 S.C. 63; 111 S.C. 356; 80 S.C. 332. Disqualification of single Grand Juror will not invalidate an indictment unless it appears that Grand Jury was composed of only twelve men: 56 S.C. 379; 79 S.E., 116; 64 S.C. 194.
December 1, 1928. The opinion of the Court was delivered by
At the fall term of Court of General Sessions for Hampton County, the grand jury rendered a true bill on an indictment presented by Hon. Randolph Murdaugh, Solicitor of the Fourteenth Circuit, charging the defendant, Robert T. Fleming, with the murder of J.F. Phillips.
The case was tried before Hon. P.F. Henderson, Special Judge, and a jury at Hampton Court House; the jury found the defendant guilty of murder with recommendation to mercy, and thereupon the defendant was sentenced by his Honor to imprisonment for the period of his natural life in the state penitentiary or on the public works of Hampton County. From said sentence and the judgment of the Court entered thereon, the defendant duly gave notice of intention to appeal to the Supreme Court.
The appellants have 21 exceptions. We do not consider that all should be considered, but only those exceptions that raise the objection that —
"(c) Juror stood up in jury box during trial of case; made to stand by the side of defendant for purpose of comparing size and weight of juror with that of defendant."
Exception 4 is:
"4. The defendant (a) was greatly prejudiced and (b) did not receive a fair trial because the Solicitor prejudiced the jury against him by calling upon juror E.W. Carter to stand up to be measured by the side of the defendant, over the objection of defendant's attorney, and asking the following questions:
"`Q. You mind standing up, please, sir?
"`A. Not a bit.
"`Mr. Murdaugh: Will you stand up, Mr. Foreman. (Mr. Carter) stand up right by him. (The defendant, the Foreman of the jury standing up side by side.)
"`Mr. Mayfield: Your Honor, please, I submit the Solicitor has no right to take the Foreman (juror) and stand him up by the side of the defendant, and we sincerely object on the part of the defendant.
"`The Court: I am of the opinion that it would have been much better to have taken someone other than the Foreman (the juror), and if there had been any objection on the part of counsel for defense, I would have stopped the procedure.
"`Mr. Mayfield: We did not know what he was going to do.
"`The Court: The Court did not know, either.
"`Mr. Mayfield: We wish to enter our protest and objection to it.'"
This exception must be sustained. The Solicitor made the juror an exhibit and part of the evidence in the case. It was highly prejudicial to the defendant; the Court did not cure it when he admonished the Solicitor; the damage to the defendant had been done and could not be removed.
The other exceptions are not considered. Exception 4 is sustained, and a new trial granted.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER and CARTER concur.
Knowing that the Solicitor who prosecuted this case is always desirous of being absolutely fair in every phase of his conduct, I am satisfied that when he called upon the foreman of the jury to stand up, and caused the defendant to stand beside the foreman, he had no intention of prejudicing the rights of the defendant. In fact, I think that such a purpose was foreign to his mind but since by this act the foreman was made an exhibit in the case, though unintentionally, the act constituted reversible error.