The opinion heretofore filed by me dissenting from the opinion of a majority of the Court which has been filed is withdrawn, and the following is substituted as a dissent therefrom and also as a dissent from the proposed order dismissing the petition for a rehearing:
There are three subjects that I shall discuss; the questions raised in them, in my opinion, should have been resolved in *Page 534 favor of the defendant, causing a reversal of the judgment and sentence of the Court, upon the conviction of the defendant: (1) The objection to the order of his Honor, Judge Mauldin, directing the emptying and refilling of the jury box for the remainder of the year 1930; (2) the objection to the order permitting the solicitor to nol pros. the original indictment and force the defendant to trial upon a new indictment which jumbled in one count all of the separate offenses set forth in the original indictment, a proceeding manifestly intended to evade the consequences of the order requiring an election, and thus to deprive the defendant of the benefit of that order; (3) the objection to the refusal of the defendant's motion for a bill of particulars.
I. The objection to the order of his Honor, Judge Mauldin, directing the emptying and refilling of the jury box for the remainder of the year 1930.
It appears that on October 8, 1930, a short while before the opening of the Court at which it was proposed to try the defendant, the solicitor of the Circuit made an ex parte application to Judge Mauldin, the resident judge of that circuit, at his chambers in Pickens, for an order declaring the jury box which had been filled in December, 1929, invalid, and directing the jury commissioners to empty and refill it for the remainder of the year 1930. The application was based upon a petition, verified by the solicitor and supported by the affidavit of the several jury commissioners.
The grounds of the invalidity of the jury box, set forth in the petition of the solicitor, were: (1) That the jury commissioners, in making up the list required by Section 548 of the Code of Civil Procedure, and in filling the box as required by Section 549, used a large number of names of those who were not qualified electors, and therefore not qualified jurors; (2) that the jury commissioners failed to list and deposit in the jury box not less than one-third of the names of those who were qualified electors of the county under the Constitution. *Page 535
These were the only two objections to the validity of the jury box advanced in the petition; there was no objection that the jury list had not been prepared at the time fixed by the statute nor that the "separate papers or ballots" upon which the names were written had not been placed in the box as required; nor that any other specific irregularity had occurred.
The alleged supporting affidavits of the jury commissioners, practically upon a common form, present only the fact that they listed and placed in the box the names of citizens as they appeared upon the tax books; that they paid no attention to the registration books; and that, as a consequence, as they later ascertained from 25 to 50 per cent. of the names listed and placed in the box were not those of qualified electors. It is true that they aver that "it is now evident that the Jury Commissioners did not place in said box as many one-third of the qualified electors of said County"; a conclusion, an inference, which they arrived at, and not the statement of a fact.
I think that it is clear that the order of Judge Mauldin, at chambers, cannot be sustained under Section 559, as that section specifically requires an adjudication "by any Court of competent jurisdiction."
And I agree with the conclusion of the Chief Justice referring to Section 560 as follows: "We are inclined to agree with the view of the appellant that the language of this section was not such as to confer upon Judge Mauldin, the resident Circuit Judge, the authority to direct the jury commissioners to prepare an entirely new jury list. The `irregularity' which the Circuit Judge, by the terms of that section, is allowed to correct must have occurred `in the drawing of the juries' and not in the listing of the jurors, or what is usually termed the filling of the jury boxes. That particular section of the Act of 1902 was evidently enacted to take care of errors and irregularities in the actual drawing of the juries for service in the Courts, for instance, the failure *Page 536 of the jury commissioners to give proper notice of the time and place of the drawing. We do not see how the language of the section could be read so as to have conferred upon Judge Mauldin the power to direct the preparation of an entirely new jury list."
So that the inquiry is reduced to the applicability of Section 563. That section is limited to the action of the Judge who may have adjudicated that the objection urged to the validity of the jury box was an act of omission, not of commission. Its language is specific upon this point. For instance, the fact that the list and deposit may have included the names of persons who were not qualified to serve as jurors, as required by Section 548, would have been an act of commission and not of omission, a ground for a motion to quash the indictment (State v. Rector, 158 S.C. 212,155 S.E., 385), and not a ground for invalidating the jury box.
A conclusive reason for the inapplicability of Section 563 is contained in the following extract from the opinion of the Chief Justice with which I agree: "That there may be no misunderstanding hereafter in a matter which may be of vital importance, we think it not out of place to say that we are not holding, and do not intend to hold, that the acts of the grand jurors first drawn for 1930, or the drawing of such grand jury or the drawing of any petit juries from the jury list first prepared for 1930, were illegal and invalid, because of the failure of the jury commissioners to place on the jury list for 1930 the required number of qualified electors. Our Court has been liberal in holding that the provisions as to the drawing and summoning of jurors are usually directory only and not mandatory. Hutto v. RailwayCo., 75 S.C. 295, 55 S.E., 445; Rhodes v. Railway,68 S.C. 494, 47 S.E., 689; State v. Smalls, 73 S.C. 516,53 S.E., 976; State v. Smith, 77 S.C. 248, 57 S.E., 868. Irregularities in the listing, drawing and summoning of jurors may be often waived, and, even if not waived are *Page 537 not in themselves acts so prejudicial as to require the quashing of a venire or to warrant the Court in setting aside a judgment based upon a finding or verdict of a jury irregularity drawn."
I think an additional reason lies in the fact that there is no legal evidence that the box contained less than one-third of the qualified electors of the county.
There being therefore no authority under any one of the sections referred to, 559, 560, 563, the error in the order of his Honor, Judge Mauldin, is apparent.
II. The objection to the order permitting the solicitor to nol pros the original indictment and force the defendant to trial upon a new indictment which jumbled in one count all of the separate offenses set forth in the original indictment, a proceeding manifestly intended to evade the consequences of the order requiring an election, and thus to deprive the defendant of the benefit of that order.
It appears that the original indictment contained seven separate counts, each charging a separate and distinct offense of breach of trust with a fraudulent intention. The defendant moved the Court for an order requiring the state to elect upon which count it would go to trial; his Honor, Judge Dennis, held that the defendant's motion was proper, and granted it; the solicitor then, without declaring his purpose, moved the Court to enter a nol pros of the original indictment. His purpose, though not declared, is manifest from what followed; he immediately, as soon as it could be prepared, on the same day, handed out a new indictment charging the offense of breach of trust, up to a certain date, which embraced in the aggregate the several amounts charged to have been the subject of a breach of trust contained in the original indictment. The new indictment was presented to the grand jury, which returned a true bill thereon. Upon the call of the case thereafter for trial the defendant moved for an order quashing the indictment upon his demurrer thereto upon the ground that the indictment embraces *Page 538 several distinct and separate offenses, and seasonably reserved the objection that proceeding under it was an improper evasion of the order requiring an election, and deprived the defendant of a benefit to which he was entitled and which had been accorded him under the Judge's order requiring an election.
The only criticism of the Judge's order permitting a nol. pros. of the original indictment is his failure to require the solicitor to state the ground and purpose of his motion; the Judge is the helmsman of the Court, and his imprimatur is necessary to such action by the solicitor; this cannot be given without a knowledge of the ground and purpose.
In People v. Newcomer, 284 Ill., 315, 120 N.E., 244,248, the Court said: "* * * We regard it as essential to the due administration of justice and the protection of the people by the enforcement of criminal laws that he (referring to the prosecuting attorney) should not have such power but the consent and approval of the Court should be required."
In People v. Mortenson, 224 Ill. App. 221, it was held quoting syllabus: "When a nolle prosequi * * * is filed by the State's attorney, discretion is imposed upon the Court which should not approve the motion to dismiss unless it also is of the opinion that the due administration of justice requires that the prosecution be ended, especially when a criminal contempt of Court is charged."
In the case of State v. Thomas, 75 S.C. 477,55 S.E., 893, an indictment against one defendant was nol prossed for the purpose, as the Solicitor announced, of handing out a new indictment joining another as defendant with the one indicted. The Court very properly held that the purpose was entirely legitimate, and sustained the nol pros.
Under the decisions of this Court and the well-recognized practice, a very wide discretion is committed to the prosecuting officer in the matter of entering a nol pros to an indictment, the exercise of which will not ordinarily be interfered *Page 539 with by the Court; but it is manifest that the exercise of this discretion must be in a commendable manner. The Judge in approving it naturally has the right to assume that the purpose is entirely proper in the protection of the interests of the State and not in derogation of the adjudicated rights of the defendant.
In 16 C.J., 435, the usual grounds for the allowance of the order are stated in detail; generally they are some irregularity in the previous proceeding or of some defect in the indictment which could not be cured by an amendment. In this instance, there was no irregularity and no defect in the indictment; it was entirely correct in uniting in the indictment the several counts as had been done; the defendant had the right, which he exercised, of moving the Court for an order requiring the solicitor to elect upon which of the separate counts charging separate and distinct offenses, he would go to trial; this motion was made by the defendant, and was granted by the Judge. The necessary effect of presenting a new indictment which jumbled all of the separate offenses set forth in the original indictment into one charge was manifestly intended to evade the consequences of the order requiring an election, and thus to deprive the defendant of the benefit of the order.
In the case of State v. Milano, 138 La., 989, 71 So., 131,132, the defendant had been indicted for a violation of the prohibition law in the city Court of Shreveport; there were other cases pending in that Court against other defendants for the same offense; upon the trial of certain defendants in these other cases the presiding Judge directed verdicts in favor of the defendants upon the ground that he would not permit a conviction based upon the uncorroborated testimony of negro "spotters" to stand; thereupon the prosecuting officer moved for a nol pros in the case against the defendant, for the sole purpose of transferring the case to the district Court, a Court originally of concurrent jurisdiction, before another Judge, where he would not be shackled by a *Page 540 similar ruling of the Judge in the city Court; the defendant was convicted in the district Court to which the prosecuting officer had access. Upon appeal, the Court said: "The abandonment of a prosecution, in a Court having jurisdiction, for an alleged violation of a sumptuary or blue law, and the institution of the prosecution, for the same offense, in another Court of concurrent jurisdiction, under the circumstances and for the apparent purpose for which it was done in this case, is not calculated to increase the respect that is due to the Courts; and we would not be inclined to encourage the practice, if we had no precedent for our present ruling."
See, also, Edelhoff v. State, 5 Wyo., 19, 36 P., 627.
There is another serious objection to the proceeding under review:
If the trial had proceeded as directed by the order of election, the defendant would have had the right to object to the introduction of any evidence tending to sustain any one of the other six counts in the original indictment upon the well-established principle declared in State v. Knox, 98 S.C. 114,82 S.E., 278, and other cases that evidence of other distinct crimes is inadmissible except under certain circumstances, clearly detailed in State v. Lyle, 125 S.C. 406,118 S.E., 803, 807. In the last-cited case Mr. Justice Marion, with his accustomed clarity, declares: "Whether evidence of other distinct crimes properly falls within any of the recognized exceptions noted is often a difficult matter to determine. The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime. But the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the Courts to rigid scrutiny. Whether the requisite degree of relevancy exists *Page 541 is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors. Hence, if the Court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected."
It was impossible then for the presiding Judge to exercise that required scrutiny when all of the distinct charges were included in the ultra-complex indictment.
Another objection, rather from a psychological than a legal point of view, is the tendency of the jury to compromise the verdict by a release of all the charges except one, when, if there had been a separate trial upon it, uninfluenced by the evidence upon six others, the verdict might have been an acquittal.
I may add in reply to the addendum to his opinion, submitted by the Chief Justice:
I do not at all question the right of the Solicitor, under ordinary circumstances, and with the approval of the presiding Judge, to enter a nol pros upon an indictment, in the interest, as the Solicitor may think, of the prosecution; or that the exercise of that right will ordinarily be questioned by the presiding Judge who is made acquainted with the purpose of the Solicitor. I do not think that the right is an absolute one, to be exercised by the Solicitor independently of the approval of the presiding Judge, who necessarily cannot approve without a knowledge of the Solicitor's object.
It is sought to differentiate the Louisiana case from the case at bar upon two grounds: (1) That in that case the Solicitor attempted to remove the case from a Court which had jurisdiction; while in the case at bar no such attempt was made. The case did not at all turn upon that point, but upon the point that the Solicitor was attempting to get away *Page 542 from a Judge hostile to the interests of the State. In this case, while remaining in the same Court, the effort was made to evade the ruling of the Judge according to the defendant a valuable right; (2) that the laws of Louisiana and the practice of the Courts have come from the civil law, and not, as with us, from the common law. What difference that can make has not been pointed out. There is nothing in the report of the case to show that the decision was based upon some peculiar provision of the civil law.
III. The objection to the refusal of the defendant's motion for a bill of particulars.
The record shows that the defendant had been indicted upon an indictment setting forth seven distinct and separate counts. When the defense made a motion to require the Solicitor to elect which count the State would go to trial on, the original indictment was nol prossed and another indictment prepared. The defense demurred to this indictment upon the ground that it clearly was a jumbling of the counts of the first indictment, and that several distinct offenses were joined in one indictment. The Court overruled this motion, thereby in effect holding that the position of the defense was incorrect, and that it was an entirely new offense.
The defense, therefore, had the right to know the nature of the charge against him and made a motion for a bill of particulars.
The object of a bill of particulars is clearly set forth in 31 Cyc., p. 565, as follows: "The proper office of a bill of particulars is to inform the opposite party and the Court of the precise nature and character of the cause of action or defense for which the pleader contends in respect to any material or issuable fact in the case and which is not specifically set out in his pleadings, and which cannot, in many cases, be given in the pleading without great prolixity."
In the footnote to the case of State v. Lewis, 26 Ann. Cas., 1203, it is said: "The office of a bill of particulars in a criminal case is to advise the defendant more fully of the *Page 543 charge against him, where the indictment is good as a pleading, but the Court may be of the opinion that the defendant is entitled to some further information before being compelled to go to trial."
The case just quoted is authority for the principle that the law of bills of particulars applies to criminal as well as civil cases, and in the note at page 1207, decisions from the United States Supreme Court, and many of the State Supreme Courts, are cited to show that a defendant in a criminal case is as much entitled to the right as in a civil case.
The remedy was particularly appropriate in the case at bar; the original indictment had been eliminated, and the new one contained a general charge of breach of trust to a certain stated amount in gross. The defendant was entitled to a particular statement of the items constituting that charge in order to properly present his defense.
I have not deemed it necessary to consider the other questions raised upon the appeal.
I think, therefore, that the defendant's motion for a dismissal of the second indictment should have been granted; the effect being a reversal of the judgment of the Circuit Court and a remand of the case for proceedings conformable to the order of election; at the least, that a new trial should be ordered upon the second ground above stated.