March 15, 1933. The opinion of the Court was delivered by It is with reluctance that I disagree with the opinion in this case, written by Mr. Justice Carter. My disagreement is based upon one issue alone, but it is one of vital importance, not only to the appellant but to the orderly, legal, and constitutional administration of the law. The Constitution of the State, Article 1, § 18, guarantees to every person accused of crime, trial by an impartial jury. It is a right of grave importance, and should not be violated from any conviction of the guilt of the person in whose trial the issue arises. It is a provision for the protection of all the citizens of the State. Not all persons accused of crime are guilty; this provision stands for their protection.
In the case at bar the defendant was convicted of the murder of his wife. A motion for new trial was made on several grounds. The only one I care to consider is contained in these words: "(b) That Paul G. Sarvis was improperly admitted as a juror in the trial of this case, in that he is and was a bonded constable, duly appointed, qualified and having made bond and sworn to arrest and bring to justice all who violate the law; is an officer of this Court and thus illegally drawn and otherwise disqualified for jury duty."
It is not contested that Paul G. Sarvis at the time of the trial was a duly appointed and bonded constable of a magistrate. It is not contested that he was ineligible to sit as a juror in this case. The motion for new trial was denied by the trial Judge on the ground that it was not shown that counsel for defendant had exercised due diligence in ascertaining the status and qualifications of the jurors. It appears to me that defendant's counsel exercised far more than *Page 210 usual diligence in the effort to ascertain the qualifications and fitness, as well as disqualifications, of the jurors. He did not reside in Horry County. He sought information of the man who was, probably, better qualified to give it than any man in the county, viz., the clerk of the Court, who isex officio a member of the board of jury commissioners, and participated in the drawing of this very jury. It appears by his affidavit that he knew that Sarvis was a duly appointed constable but that he did not apprise counsel of that fact. On the contrary, he assured him that Sarvis was a farmer, a good substantial man, and would make a good juror. It is urged in argument that Sarvis was a bonded constable, whose bond was on file in the clerk's office, and that counsel, with the exercise of due diligence, would have ascertained this fact. This is enforcing the requirement of due diligence with too great harshness. There was literally nothing to suggest to counsel that one of the prospective jurors might be a bonded officer of the law. He had every right to rely upon the presumption that the officers who drew the jury knew their duty and did it. He went to the highest authority from which to gain information of the men who composed the venire. It appears to me that counsel showed unusual diligence in the effort to ascertain all about the jurors. This Court is disposed to apply the rule of due diligence with more leniency where human life is concerned.
In the case of State v. Johnson, 123 S.C. 50,115 S.E., 748, Judge Prince set aside a verdict of guilty because it appeared that a deputy sheriff had sat upon the jury which convicted the defendant. The State appealed. The order of Judge Prince was affirmed because the Court said it did not appear that there was abuse of the discretion vested in him.
In the case of Garrett v. Weinberg, 54 S.C. 127,31 S.E., 341, 34 S.E., 70, it was held that: "New trial should be granted when a disqualified juror sat on the case, of which the parties to the suit, or their attorneys did *Page 211 not know until after verdict." In that case a juror who sat on the panel and participated in making the verdict had been convicted of larceny, and thus was disqualified under constitutional provision, but this fact was not known by counsel till after the trial. Chief Justice McIver, delivering the opinion of the Court said: "The only remaining inquiry is whether the disqualification of Ardis to serve as a juror entitled the defendants to have their motion for a new trial granted. In view of the express provisions of the Constitution above quoted which are declared mandatory, it is difficult to see how this question can be answered otherwise than in the affirmative. This being a question of title to real estate it is not necessary to cite authority to show that the parties were entitled to a trial by jury. What that jury should consistof is expressly declared in mandatory terms by the Constitution.It must be a body of twelve men, each of whommust be a qualified elector, and `all of them must agree to averdict in order to render the same.' These are the expressmandates of the Constitution, and it must be obeyed. Buthere we have a body of twelve men, one of whom is not aqualified elector, who has undertaken to render a verdict,which, under the terms of the Constitution, they have nopower to do, and hence the same should be disregarded andset aside, and a new trial ordered." (Italics added.)
It is true that the learned Chief Justice in the case of Statev. Robertson, 54 S.C. 147, 154, 31 S.E., 868, qualified this language by saying that the rule applied if the parties were ignorant of the disqualification and it could not with reasonable diligence have been discovered. Doubtless, this is the accepted rule, and in my judgment the requirement of due diligence has been fully met in the case now before the Court.
The Constitution guarantees to every person a fair and impartial trial by a jury of his peers. It cannot be said that one has had such trial if there has sat on the jury one who is expressly disqualified to sit there; *Page 212 and he is not estopped to raise objection thereunto unless it be shown clearly that he has not exercised due diligence in the matter of selecting the jury. The appellant was not convicted by a jury of twelve qualified men. One of them was expressly disqualified. My opinion is that there should be a new trial.
A majority of the Court, as constituted, concurring in the conclusion reached in this opinion, the judgment of the Court is that the judgment below be reversed, and that the cause be remanded to the Court of General Sessions for Horry County for a new trial.
MR. CHIEF JUSTICE BLEASE and MESSRS. CIRCUIT JUDGES C.J. RAMAGE and G. DEWEY OXNER, ACTING ASSOCIATE JUSTICES, concur.
MR. JUSTICE CARTER dissents.