"As to the second ground, I may add the consideration that one who may be drawn, sworn in, and acts as a grand juror in passing upon an indictment, when he is not legally qualified to do so, is a stranger to the proceedings, as much as if he had never been drawn; his participation would therefore be illegal; it would be impossible to gauge the extent of his influence upon the qualified members of the jury."
"The Legislature may prescribe the methods for exercising the constitutional and statutory jurisdiction of boards of supervisors, and where it does prescribe the mode of procedure, the rule is exclusive of all others and must be followed. * * *" 15 C.J., 459-60.
As we have seen, the General Assembly of South Carolina has prescribed that at least two members of Boards of Registration shall sign the certificates of registration issued to applicants for registration, that duty is conferred on them exclusively.
It is alleged, and is true, that one of the grand jurors on the panel which found this indictment, first received a certificate of registration which he had not applied for in person, and has been given another which is denominated a "duplicate"; that there is no provision that the board may issue "duplicates"; that they may renew a certificate when the original certificate has become lost, mutilated or destroyed, if the applicant is still a qualified elector under the provisions of the Constitution. Section 4, Article 2 of the Constitution.
The grand juror, C.A. Stuart, applied for and received in person a new certificate which he calls "a duplicate." It does not appear from the record whether the certificate first issued to him was lost, mutilated or destroyed. It does appear that he has a certificate duly and properly signed by at least two members of the Board *Page 244 of Registration. Lacking evidence whether the first certificate was lost, mutilated or destroyed when the second one was issued, we shall not declare the latter one to be illegal, but we do declare that there was no authority given the Board of Registration to issue "duplicate" certificates.
We have reluctantly come to the conclusion that the grand jury which found the indictment upon which the appellant was prosecuted was not a legally qualified one, for the reason that at least five of its members who participated in its finding were not legally registered electors, because it is shown by the record that they were not legally registered, because their certificates of registration were not signed by at least two of the members of the Board of Registration for McCormick County.
As was said by Mr. Justice Gage in the case of State v.Freely, 105 S.C. 243, 89 S.E., 643, 645: "The defendant does not go acquitted; he must face only another jury."
In the case of State v. Elliott, 169 S.C. 208,168 S.E., 546, 547, this Court said: "* * * 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."
The judgment of the lower Court is reversed and the case remanded to that Court for new trial.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES CARTER, BAKER and FISHBURNE concur. *Page 245