State v. Amburgey

Mr. Associate Justice Fishburne delivered the majority Opinion of the Court. On January 29, 1944, the defendant, J. N. Amburgey, shot and killed Robert Brown. The homicide was committed in a combination eating place and dance hall operated by the defendant on the Buncombe Road, about eighteen miles above the city of Greenville. Upon his trial for murder — the killing being undisputed — the issues were whether the defendant was guilty of murder or of manslaughter, or whether he killed in self defense. From conviction and sentence for manslaughter the defendant appeals, alleging error in the admission and exclusion of evidence, in the charge to the jury, and in the denial of his motion for a new trial. *429 For the purpose of showing that the deceased was of a violent and turbulent disposition, the defense offered the witness O. C. Cothran, who, when asked upon direct examination if he knew the general reputation of the deceased with respect to violence and turbulence, replied that he did know it, and that it was bad. On cross examination by the solicitor, it developed that the witness knew the deceased as a bootlegger. Upon re-direct examination by counsel for the defense, the witness was asked if he had ever heard that Robert Brown, the deceased, had cut a man by the name of Clarence Burnett. Objection was promptly made by the solicitor to this evidence, upon the ground that it was improper to go into other specific instances of violence on the part of the deceased; and the Court sustained the objection. Appellant contends that the solicitor in his examination opened the door to testimony with reference tO' specific incidents, and that the Court erred in excluding the question asked by defense counsel. The rule has long been established in this State that evidence of other specific instances of violence on the part of the deceased are not admissible unless they were directed against the defendant, or, if directed against others, were so closely connected in point of time or occasion with the homicide as reasonably to indicate the state of mind of the deceased at the time of the homicide, or to produce reasonable apprehension of great bodily harm. State v. Hill, 129 S. C., 166, 123 S. E., 817, and cases cited therein. The appellant, however, is in no position to complain. As soon as the witness Cothran was excused, the defendant obtained the very evidence he desired, from his witness Clarence Burnett. He stated upon direct examination that he knew nothing about the reputation of the deceased for turbulence and violence. Then, when asked if the deceased had ever cut him, he replied in the affirmative. Objection was made to this evidence on the ground that *430 the defense had no right to go beyond proof of general reputation. The objection was sustained, but the jury heard the evidence, and the Court did not order it stricken out. The second exception relates to a matter already referred to. When the solicitor brought out on cross examination that the defense witness, O. C. Cothran, who was a deputy sheriff, had known the deceased as a bootlegger, he immediately requested the trial Judge to instruct the jury that the reputation of the deceased as to handling liquor had nothing to do with his reputation for turbulence and violence. The trial Judge ruled: “I will leave it to the jury to say what the witness’s testimony is; it is a matter for them to say what the witness says; but I will say to the jury that the point we are concerned with, the trait of character of the deceased, is peace and good order or turbulence and violence; and the handling or sale of liquor would not necessarily relate to that.” It is argued that the trial Judge should have left this testimony to the jury as to whether or not it affected the reputation of the deceased. There is obviously no merit in this contention. Under the ruling of the Court, the question was, to all intents and purposes, left to the jury as to whether or not it affected the reputation of the deceased. But we think under the facts as shown by the record, the trial Judge would have committed no error if he had held as a matter of law, that the evidence bearing upon the fact that the deceased had been a bootlegger, was irrelevant as to his reputation for turbulence and violence. 40 C. J. S., Homicide, § 222 (2), page 1141. The next exceptions to be considered deal with alleged errors in the charge given to the jury. After a most comprehensive general charge, soundly covering every element connected with the issues, the Court was requested by counsel for the defense and by the solicitor to give certain additional instructions to the *431 jury. At the request of the solicitor, he gave the following charge: “A homicide is not justifiable or excusable on the ground of self-defense by reason of a danger or apprehension of danger, of slight bodily injury, or of a mere indignity, or of a slight or moderate injury, such as that to be apprehended from a simple or ordinary assault or battery with the hand or fist without a weapon, unless the assault is accompanied by acts indicating imminent danger of serious bodily harm or felony and produces in the mind of accused a reasonable belief of such danger.” (Emphasis added.) It is said that the portion of the instruction which is italicized constituted a charge upon the facts, and thereby invaded the province of the jury. Immediately following the above-quoted charge, the trial Judge in his own language stated to the jury: “In connection with that the jury should also, of course, consider the question of reasonably apparent danger; and you also consider my general charge as to the requirement that the defendant believed he was in imminent danger of losing his life or of suffering serious bodily harm, that is, the circumstances were such that the ordinary man of ordinary prudence and courage would have entertained that belief.” There is evidently no foundation to this exception. The evidence shows without dispute that the appellant was armed with a pistol, and that the deceased had no weapon at all. According to the version of this affair given by the defendant, he was attacked by the deceased solely with his hands and fists. Appellant contends that certain requests to charge submitted by the solicitor, and given by the trial Judge, were inconsistent with reference to the general charge given by the Court. A few illustrations with reference to this alleged confusion will show that there is no merit in the exceptions raising these questions. *432 The Court charged the State’s fourth request, as follows: “In order to justify or excuse a homicide in self-defense, the danger, whether real or apparent, must be impending and imminent; the danger must be actual, present aiid urgent, or such as the defendant believes on reasonable grounds to be so urgent and impending that it is necessary for him to kill in order to save himself from immediate death or serious bodily harm.” The foregoing request was immediately followed by this further explanation: “There is also to be taken into consideration the belief of the defendant and the belief justified under the circumstances in the mind of a man of ordinary prudence and courage. Also the law as to appearances.” The Court charged the fifth request of the solicitor: “The reasonableness of the defendant’s apprehension is for the jury, and not the party charged, to be ascertained from the evidence and proper instructions of the court.” The trial Judge immediately followed with this exposition of the law: “In my general charge I stated to the jury that the defendant himself must believe he is in imminent danger; and I charge you also that not only the defendant but a person of ordinary prudence and courage must be justified in having such a belief as to the loss of life or sustaining serious bodily harm; and the law which I have given to you as to acting upon appearances.” It is inconceivable that the jury could have been in any way misled or confused as to the principles of law they should be guided by. The trial Judge again and again fully charged every element relating to the plea of self-defense. In charging the numerous requests submitted by counsel for the defense, these elements were again gone over, restated, and by their repetition re-emphasized. *433 The last issue presented by the appeal is whether the Court erred in refusing to grant a new trial based upon the ground that one of the jurors, W. B. Perry, who convicted the appellant, was not a qualified (registered) elector. In overruling the motion for a new trial, the trial Judge relied upon the decisions of this Court in the cases of State v. Gregory, 171 S. C., 535, 172 S. E., 692; and State v. Logue, 204 S. C., 171, 28 S. E. (2d), 788. It is conceded that the juror, W. B. Perry, was not a registered elector. It appears that two men bearing this name and with these initials resided in Greenville County. One was a qualified elector, but the one actually summoned for jury service had never been registered. His lack of qualification in this respect did not become known until a jury was being selected during the same week of Court to try another defendant. The motion for a new trial was made after this incident, and after sentence had been pronounced upon the defendant. In State v. Gregory, 171 S. C., 535, 172 S. E., 692, 695, this Court held: “We are compelled, nevertheless, to hold that there was manifest error, so much as to amount -to an error of law, and the wrongful exercise of the discretion committed to him under the law, in the holding of the circuit judge that due diligence was exercised on the part of the respondents in their efforts to ascertain before the jurors were sworn their disqualification to sit in the case. Clearly, under numerous decisions of this court, so very many that it is useless to cite them (see annotation under section 639 of the Code), a party, in his trial,, who fails to exercise due diligence in discovering the disqualification of a juror, before the empaneling of the jury, cannot, after the rendition of a verdict adverse to him, rightly ask the court to disturb that verdict. This court, time after time, has disapproved the quiet sitting of a party, with information already obtained, or which could easily be obtained, as to the disqualification of a juror, *434 taking his chances, ready to acquiesce in a favorable verdict, and more ready to move the setting aside of an unfavorable one. The provisions of section 639 of the Code say that objections to jurors, not taken before the jury is empaneled, ‘shall be deemed waived; and if made thereafter shall be of none effect.’ The court has construed the language of the section to mean such objections of which the party had knowledge, or which by the exercise of due diligence he could have known.” But our attention is directed by appellant to Section 608 of the Code, which provides for the preparation of the jury list — and especially to the amendment of 1939 thereto, which reads as follows: “Provided, futher, that the presiding judge shall at each term of court, ascertain the qualifications of jurors by having them present to the clerk of court their registration certificates or other satisfactory evidence that they are qualified electors * * Counsel for appellant earnestly contend that the effect of the amendment is to completely overturn and nullify the holding of the Coixrt in State v. Gregory, supra, and similar cases, and the sound rationale upon which those cases are based. It is said that the 1939 amendment, being mandatory, wholly relieves a defendant and his counsel from exercising any diligence in discovering before the empaneling of a jury, whether a juror is a qualified elector; and that this duty and responsibility now rest exclusively upon the trial Judge. We should say in passing that it is admitted that one of the attorneys for the defense was in the Court Room upon the opening of the Court, and present when the clerk of court publicly called the names of the petit jurors on the jury list in order to check the names of those who were present and those who were absent. It is conceded that no effort was made by counsel for the defense to ascertain whether any of the petit jurors were qualified electors. When the trial of the defendant was en *435 tered upon and the individual jurors were being called and presented, no inquiry was made of the trial Judge — the highest authority — as to whether or not the jurors present had been required to present to the clerk of court their registration certificates. Nor was any inquiry made of the clerk of. court. The jurors were presented separately and examined upon their voir dire. Counsel for the defense exercised the privilege extended by the Court of asking any additional questions of the jurors as to their qualifications, but no question was asked with reference to whether any juror was a qualified elector. The decision in State v. Gregory, supra, was handed down in 1934, and hence was prior to the amendment of 1939. The decision in State v. Logue, supra, was subsequent thereto. In the Logue case the point was made that the trial Judge had inadvertently failed to ascertain the qualifications of jurors, as required by the 1939 amendment, now incorporated in Section 608 of the 1942 Code. While it is true that in the Logue case no showing was actually made that any of the jurors were in fact disqualified, I do not think that this fact in any way qualified or limited the holding of the Court. The second ground upon which the decision in the Logue case was based, holds (204 S. C., 171, 28 S. E. (2d), 790): “Nor does the record show that any timely suggestion was made to the presiding judge that he should have those upon the venire present to the Clerk of Court their registration certificates or other satisfactory evidence that they were qualified electors. Had such a request been made, Judge Bellinger, able and experienced trial judge that he is, would undoubtedly have required this to have been done. “ ‘All objections to jurors called to try prosecutions, or actions or issues, or questions arising- out of actions or special proceeding's in the various courts of this State, if not made before the juror is empaneled for or charged with the trial of such prosecution or action, or issue, or question arising *436 out of actions or special proceedings, shall be deemed waived; and if made thereafter shall be of none effect.’ Code, Section 639; State v. Gregory, 171 S. C., 535, 172 S. E., 692.” And it will be noted that in the foregoing quotation there is cited State v. Gregory, 171 S. C., 535, 172 S. E., 692, as supporting and upholding the ruling of the Court. In the recent case of State v. Hann, 196 S. C., 211, 12 S. E. (2d), 720, the Court deals extensively with the qualification of grand jurors, and generally discusses the necessity that objection that members of a grand jury which find an indictment are not qualified electors, should be made by demurrer or motion to quash the indictment before pleading to it. Many of the earlier cases are cited, holding that timely objection must be made before pleading to the indictment, oi else any objection to the jurors will be waived. In State v. Hann, supra, the Court quoted the following from State v. Rector, 158 S. C., 212, 155 S. E., 385, 391: “While the disqualification of a grand juror may be waived by the defendant if he does not make the objection in time (State v. Motley, 7 Rich., 327, and State v. Boyd, 56 S. C., 382, 34 S. E., 661), yet when a defendant does insist at the time when he may do so, he is entitled, as a matter of constitutional right, to have the grand jury, which indicts him, composed only of such persons as the Constitution of the state has plainly declared may act thereon.” (196 S. C., 211, 12 S. E. (2d), 727.) The trial Judge in the case at bar overruled the motion for a new trial upon the ground that the defendant, having failed to make any timely suggestion to the presiding Judge -that he should have the jurors present to the clerk of court their registration certificates, or other satisfactory evidence that they were qualified electors, waived such requirement. And we think his ruling is correct and falls specifically within the holding in the Logue case. *437 The 1939 amendment merely provided an additional legal safeguard with reference to the qualifications of jurors; but as we see it, in no sense does it relieve a defendant from exercising due diligence in ascer~ taming the statutory and constitutional qualifications of jurors. Section 639, 1942 Code, has been referred to in all of the prior cases passing upon this issue as controlling, and that is, that objections to jurors, if not made before the juror is empaneled or charged with the trial of a case, “* * * shall be deemed waived; and if made thereafter shall be of none effect.” In our opinion, the amendment of 1939 did not in any respect modify or repeal the overall effect of this statute. It seems to us that to hold otherwise would be to inject into the trial of a case the elements of a game of chance, based solely upon the inadvertance of a trial Judge to require jurors to present evidence that they are qualified electors. The judgment below is affirmed. Messrs. Associate Justices StukEs and Oxner concur. Mr. ChiEE Justice Baker and Mr. Associate Justice Taylor dissent.