State v. Deyoung

Mr. Associate Justice Stukes delivered the majority opinion of the Court. *483 The facts relating to this appeal are taken from appellant’s brief; the Solicitor and his associate counsel filed none, and likewise made no oral argument. Appellant was convicted at the May 1946 term of the Court of General Sessions for Greenville County of the crime of assault and battery with intent to kill. Before sentence the court refused motion for a new trial made upon the ground that one of the trial jurors was disqualified because he had previously moved his residence from Green-ville to the adjoining county of Spartanburg. At the convening of the court the presiding judge complied with the provision of Sec. 608 of the Code which required that he ascertain that the jurors possessed registration certificates. On the panel was one W. G. Stokes who had registered on October 6, 1944, while a resident of Greenville County but subsequently moved to Spartanburg County where he resided at the time of this jury service. After completion of the testimony, arguments and charge and when the jury were out, upon their deliberation, an unknown bystander informed appellant’s counsel that he thought Stokes lived in Spartanburg County, whereupon counsel passed the rumor to the trial judge who asked the Clerk to check the mileage given by the juror and it was found to correspond with his listed Greenville County address. The result of this cursory investigation convinced counsel that the juror was qualified by residence, and nothing further was done or said about it until after the rendition of verdict when counsel obtained more information (again by chance, when the juror employed him to draw a deed to Spartanburg land) and made the motion for a new trial, from the denial of which this appeal was taken. The case is controlled by the reasoning and precedent of State v. Amburgey, 206 S. C., 426, 34 S. E. (2d), 779, and the authorities there cited. It is provided by the old statute which is now section 639 of the Code of 1942, as follows: “All objections to jurors called *484 to try prosecutions, or actions or issues, or questions arising out of actions or special proceedings in the various .courts of this State, if not made before the juror is impaneled for or charged with the trial of such prosecution or action, or issue, or question arising out of actions or special proceedings, shall be deemed waived; and if made thereafter shall be of none effect”. It was early held that the statute applies only to disqualifications of jurors -which were known to the complaining party or his counsel before trial or unknown and such ignorance was due to the lack of diligence. Where the disqualification relied upon might have been discovered by the exercise of ordinary diligence, it affords no excuse for failing to make the objection in due season. Otherwise, the party would be permitted to take advantage of his own negligence. State v. Robertson, 54 S. C., 147, 31 S. E., 868. In the case now before us the appellant or his counsel could have quite easily ascertained that the juror, although duly registered in Greenville County, had moved across the line into Spartanburg County before summoned to jury duty. Little effort would have been required; certainly the failure to make effective inquiry was not the exercise of due diligence. Moreover, inquiry was not diligently pursued when counsel first accidentally came upon the information. He was thereupon satisfied by the knowledge that the juror had stated the mileage from his home to the Court Llouse which corresponded with the residence given in his registration certificate. No effort or motion was made to further verify the fact, which could have conveniently been done by the questioning of the juror by the court or counsel. The court could have easily been asked to call him from the jury room for tliat purpose. It is contended that it would have been embarrassing and possibly prejudicial for counsel to have asked at that stage for interrogation of the juror. A like argument was made in State v. Gregory, 171 S. C., 535, *485 172 S. E., 692, and upon examination was found to be without merit. There it was contended that to request the court to inquire concerning the registration of the jurors would have incurred the risk of offending them and thereby endangering the cause of the defendants. But it was pointed out by the court that such position was untenable. And we think it equally so here. Thus appellant and his counsel were wanting in diligence in the first place in their failure to ascertain the disqualifying change of residence of the juror before trial and, in addition, when the information fortuitously came to them during the course of the trial, they did not pursue it. They could not in that manner take their chances upon a favorable verdict and complain after an unfavorable one. The appeal must be dismissed. judgment affirmed. Mr. Associate Justice Fishburne concurs and Mr. Associate Justice Oxner concurs in result. Mr. Chieb Justice Baker and Mr. Associate Justice Tayeor dissent.