The opinion of the Supreme Court affirming the judgment of the Circuit Court was filed on June 27, 1935. On July 6, 1935, within the ten-day period during which the remittitur was still retained by this Court, the defendant, through his attorneys, presented his petition, with supporting affidavits, to the Chief Justice, praying for an order staying the remittitur, and allowing the defendant to make his motion before the whole Court in special session for leave to make a motion in the Circuit Court for a new trial on the ground of after-discovered evidence. Upon consideration of the petition and the affidavits attached, the Chief Justice issued an order staying the remittitur, and granting the motion, which was heard at a special session of the Court held on July 25, 1935.
The practice and procedure followed here is that approved in State v. Hawkins, 121 S.C. 290,114 S.E., 538, 541, 27 A.L.R., 1083, where it was held that "unless it should be shown to the Supreme Court prima facie that the defendant is entitled to relief, that Court will take no steps in the matter. If prima facie it is shown to the Supreme Court that the defendant is entitled to relief, then the opportunity to get that relief should be and will be afforded him."
The after-discovered evidence upon which the motion is founded consists in an alleged disqualifying statement made *Page 203 by Edgar Drawdy, one of the jurors who sat upon the defendant's case. The defendant submitted on the hearing before us five affidavits from citizens of Bamberg County to the effect that they heard this juror on Monday morning, November 5, 1934, which was the day the special term of Court convened, make the statement that "he was a juror for that week, and that he hoped he would be drawn to serve on the Kennedy case, and that if he were placed on the jury to try the Kennedy case that he would see that the said R.D. Kennedy got electrocution." These affidavits were accompanied by one from the defendant, bearing date July 6, 1935, in which he states, among other things, "that since deponent has been tried he has learned that at least one of the jurors (Edgar Drawdy) was not an impartial juror."
It is to be noted that nowhere in defendant's affidavit does he make this statement any more definite as to the time when he learned that the juror Drawdy was not impartial, although his trial had occurred more than seven months before. Attention is also invited to the fact that his affidavit, as well as the other affidavits referred to, were prepared and submitted to the Chief Justice of this Court within a very few days following the filing of the opinion of the Court which terminated his appeal adversely.
This Court in recent years has had occasion to pass upon many cases in which questions similar to this were considered.
In State v. Meehan, 160 S.C. 111, 158 S.E., 151, 158, tried on the circuit before Judge M.L. Bonham (now Associate Justice), a motion was made for a new trial on the ground that one of the jurors had a few days previous to the trial of the case stated, in effect, to at least two other persons that he hoped to be a juror on appellant's case so that he could convict him. An affidavit from the two persons to whom it was claimed that the juror had made this statement was presented to the Court at the time the motion was made. In overruling the motion the trial Judge said: *Page 204
"`There is nothing in this affidavit to show that the statement now relied upon and alleged in this affidavit could not have been obtained by due diligence beforehand. It is stated in argument that it was unknown to defendant until after the trial. The list of jurors was published before Court came on, and if these two affiants here knew of this and did not inform the Solicitor and the defendant and his attorney of this, they were very derelict in their duty as citizens; and it is late in the day for them to come here now and make this statement. The State has no opportunity to reply to these affidavits; they are presented immediately with the motion, and they do not commend themselves to my consideration.'"
An appeal was taken from the order overruling the motion, and this Court held, per Blease, C.J.: "We agree with the Circuit Judge, from the little we can gather from the record in the case, that there was lack of due diligence on the part of the appellant to entitle him to a new trial on the ground that the juror was prejudiced against him. The statement from the two affiants, as to what the juror had said relative to the appellant's case, was presented to the Court within less than twenty-four hours after the jury had returned their verdict. If the appellant had been as diligent before his conviction as he was after the jury had found him guilty, he could have made the discovery as to the juror's attitude of mind, if the statements contained in the affidavits were true. Appellant not only failed, according to the record before us, to ascertain the standing and character of the jurors who were to try him before the time of trial, although he had opportunity to do so, but he did not even ask that the jurors be sworn on their voir dire, so that they might be questioned as to their interest and feelings in the case. The point raised here has been disposed of against the contention of the appellant, on account of his failure to exercise due diligence, by the case of State v. Robertson,54 S.C. 147, 31 S.E., 868. See, also, Blassingame v. City *Page 205 of Laurens, 80 S.C. 38, 61 S.E., 96; State v. Johnson,123 S.C. 50, 115 S.E., 748." See, also, State v. Smith,165 S.C. 215, 163 S.E., 639, and State v. Portee, 122 S.C. 298,115 S.E., 238, 239.
Likewise the Court (per Marion, J.) stated in State v.Johnson, 123 S.C. 50, 115 S.E., 748, 749, in passing upon a similar question:
"But it does not follow that, because the juror was disqualified, the defendant was entitled as a matter of legal right to a new trial on that account. Section 4047 of Civil Code, 1912, expressly requires that 'all objections to jurors,' if not made `before the juror is impaneled for or charged with the trial of such prosecution,' etc., `shall be deemed waived; and if made thereafter shall be of none effect.' It is no valid ground for setting aside the verdict of a jury that the moving party was ignorant of the disqualification of a juror, and so failed to challenge him, if the disqualification relied on might have been discovered by the exercise of ordinary care. The rule on the subject is thus stated in State v. Langford, 74 S.C. 460, 465, 55 S.E., 120, 122:
"`It is true that in the case of Garrett v. Weinberg, 54 S.C. 127,31 S.E., 341, 34 S.E., 70, this Court held that a new trial should be granted if a disqualified juror sat on the case, if neither the party nor his counsel knew of the disqualification until after the verdict; but in the subsequent cases of State v. Robertson, 54 S.C. [147], 152, 31 S.E., 868, and Mew v. Railway Co., 55 S.C. [90], 95, 32 S.E., 828, the Court states the rule that where the disqualification relied on might have been discovered by the exercise of ordinary care, it affords no excuse for failing to make the objection in due season, since a party should not be permitted to take advantage of his own negligence.'
See Blassingame v. City of Laurens, 80 S.C. 38, 46,61 S.E., 96; State v. Jones, 90 S.C. 290, 296, 73 S.E., 177;State v. Cooler, 30 S.C. 105, 8 S.E., 692, 3 L.R.A., 181."
Also in State v. Faries, 125 S.C. 281, 118 S.E., 620,621, this Court (per Marion, J.) held that the defendant *Page 206 received a fair and impartial trial, although the juror in question admitted upon his voir dire that he had "expressed the opinion that the defendant ought to be hung"; but qualified the statement by saying, "If the reports he saw were true."
At the hearing of this motion before us, the solicitor submitted, among others, certain affidavits which tended to divulge what had occurred in the jury room, but without reference to these affidavits we are of the opinion that the defendant has failed to make such a prima facie showing as would warrant us in granting his motion.
In the trial below each juror as his name was called was placed upon his voir dire, not upon the motion of the defense, but upon the motion of the State. This juror denied under oath, and later by affidavit, that he had formed or expressed an opinion as to the guilt or innocence of the accused, and he stated that he was not conscious of any bias or prejudice, either for or against the defendant. The result of the trial shows that he did not stand out for electrocution; the defendant was convicted of manslaughter. This, standing alone, should not be treated as conclusive, but it has its influence, in view of the failure of the defendant to exercise due diligence in bringing the juror's alleged incompetence and disqualification to the attention of the Court. There is nothing in defendant's affidavit to show that the statements now relied upon could not have been obtained by due diligence long before the decision of this Court was made and announced on June 27, 1935, or even during his trial.
The affidavits presented to us in behalf of the defendant tend to show that the disqualifying statement alleged to have been made by the juror, Drawdy, was made several times on the morning Court convened in Bamberg, and certainly in the presence of several groups of people, and was thus widely disseminated. *Page 207
After a verdict has been rendered, and the jurors have dispersed, their solemn act should not be overthrown and set aside except upon the most convincing showing of prejudice to the defendant — amounting to a denial of a fair and impartial trial. Certainly, after the rendition of a verdict, affidavits attacking the integrity of a juror should be received with great caution, deliberation, and circumspection. In this case every precaution known to the law was duly taken and observed in order that the defendant might have that fair and impartial trial guaranteed to him by the Constitution and laws of this State.
We are impressed with the fine insight and sound reasoning of Judge Robert Aldrich, Acting Associate Justice, in State v. Jones, 89 S.C. 41, 71 S.E., 291, 294, Ann. Cas., 1912-D, 1298, where he said: "Nothing is of more frequent occurrence than for men, upon sudden impulse or uponex parte representations of a case, to give expression to their opinions in reference thereto, often in the most violent and feeling manner, and yet these same men, when sworn as jurors and given the opportunity to make up their minds from the evidence adduced, the arguments of counsel and the charge of the Judge, and forced to act upon the solemnity of their oaths and the responsibility of their office, make the most exemplary jurors, and frequently decide in opposition to their preconceived opinions."
It is the judgment of this Court that the motion of the defendant be denied, and that the order heretofore issued, staying the remittitur, be revoked.