June 17, 1909. The opinion of the Court was delivered by The defendants were convicted on an indictment framed under section 268 of Criminal Code, the indictment charging that they "did wilfully and unlawfully convey into the county jail of Greenwood county, where prisoners were lawfully confined and detained, certain implements for the purpose of aiding and assisting prisoners therein confined to escape, said instruments being a cold chisel, hammer, and a bunch of keys, against the form of the statute in such case made and provided," etc. *Page 84
The questions made by the appeal will be considered without referring separately to each of the fifteen exceptions.
There is evidence that Mills Moore and Cohen Moore were confined in the Greenwood jail on the charge of stealing a cow, and Culbert Curry for assault and battery.
Nathan Curry was also in jail, but it does not appear on what charge. The four were in one cell. Mills Moore testified for the prosecution that when the defendants, D.W. Ballew and D.J. Ballew, father and son, were at the jail together, D.J. Ballew gave a cold chisel and a hammer to one of the Currys; and that at another time the elder Ballew brought a bunch of keys for the Currys, who were his nephews, to use in escaping from jail. A bolt was cut with some implements and a hole was thus made large enough for Cohen Moore to escape. Mills Moore also testified the implements used were the hammer and chisel brought to the Currys. The defendants testified they had not carried to the jail the keys, hammer or chisel. Members of their family and M.F. Drake, who testified they were with defendants at the jail, corroborated their testimony. The Currys denied on the stand that the defendants had anything to do with the matter, and testified an old hatchet left by the jailer was used in breaking the bolt. The jailer, on the contrary, testified the hatchet was outside the cell and that in his opinion the bolt could not have been cut with the hatchet.
The defendants' counsel contends the Circuit Judge should have set aside the verdict, because it could stand only on the uncorroborated testimony of accomplices. The point that there was no request from defendants' counsel to charge on this subject may be waived, for there was corroborative evidence. The presence of defendants at the jail in communication with the prisoners, the absence of evidence that any one else had the opportunity to furnish an implement, the evidence of the jailer that the hatchet which the Currys, testifying on behalf of defendants, said was the *Page 85 implement used, was found by him outside the cell, all taken together certainly furnish some corroboration of the evidence of the Moores.
Questions asked the defendant, D.W. Ballew, and his children, by the presiding Judge, about the illiteracy of the children, did not tend to impeach their veracity, and was not an abuse of discretion.
The ground of appeal, "that there is a total failure of proof that at the time of the alleged offense there were any persons in said jail there lawfully committed or detained," might be serious if the question had been made on the trial. There is evidence that the prisoners were in jail charged with acts which are criminal under the laws of the State, but there is no evidence of the process under which they had been committed or detained. The lawfulness of the commitment and detention seems, however, to have been assumed on trial; at least, the defendants did not in any way raise the question in the Circuit Court, and it is too late for them to make it here. State v. Walker, 79 S.C. 107,60 S.E., 309.
There was no error of law in refusing a new trial, on the ground that the defendants could not be jointly guilty of one offense, because one of them at one time furnished the prisoners with a chisel and hammer, and the other at a different time passed in the keys. The evidence tended to show that when the chisel and hammer were given to the prisoners both defendants were present and acting together in the matter. It is not necessary that each should take part in the physical transportation of the implement if they are acting together, one of them carrying the implement, in furtherance of the common enterprise.
The essential elements of time and place were left out of the question relied on as the foundation of the contradiction referred to in the fourth exception, and the contradiction was, therefore properly excluded. *Page 86
It remains to consider the ground of the motion for a new trial, most earnestly pressed by counsel for appellants. After the jury had retired to consider their verdict, they returned to the Court room. The record contains this account of what then occurred: "The Foreman: We just wanted to go down to the jail and look at this place and see if we can see whether it was knocked off or how it was cut. The Court: What do you say, gentlemen? The Solicitor: The State has no objection. Mr. Magill: We have none. The Court: Take the two prisoners with you, Mr. Sheriff. Under a recent decision they must be there, too. Take the prisoners along and let the jury look at the place with the Ballews. And all you do, Mr. Sheriff, is just show them the place, and don't say another word about anything around there, and don't let anybody else say anything to them. Show them the place where the breaking was, and take the Ballews along, too. Mr. Magill, you may go if you desire."
While the jury were viewing the cell, Dukes, the prosecutor, exhibited to them the cord and piece of iron which the defendants had endeavored to prove was used by the prisoners to draw the hatchet into the cell. Dukes placed the hatchet out of the cell and against the wall. The jury then tried to throw the iron attached to the cord so as to draw the hatchet into the cell, but failed for the reason as contended by defendants' counsel, that the hatchet was placed against the wall. In deciding the motion for a new trial, the Circuit Judge said he would grant the motion on account of this action of the jury, but for the fact that the defendant's counsel, with full knowledge of the action of the jury, failed to bring it to the attention of the Court until after the verdict. Juries may be allowed, in the discretion of the Court, to inspect the scene of the transaction under investigation, but it is improper for the jury to take evidence by experimentation, or otherwise, outside of the Court. Thompson v. Mallet, 2 Bay, 94. There can be no *Page 87 doubt, therefore, that the action of the jury in this instance was improper. But defendants' counsel was himself present for the very purpose of seeing that there was no unfairness towards the defendants, and if he felt aggrieved by the action of the jury, he was bound to exercise his right to complain as soon as practicable. The defendants, with full knowledge of the misconduct of the jury, having chosen not to complain to the Court, but rather to take the risk of a verdict in their favor, could not afterwards, because the verdict was against them, have a new trial on this ground. The general principle that a party can not take his chances of a successful issue, reserving vices in the trial, of which he has notice, for use in case of disappointment, is universally recognized and obviously just. It has been often applied in this State when the defendant has failed to make known his objection to individual jurors or to the panel until after the trial. Blassingame v. Laurens, 80 S.C. 38;State v. Langford, 74 S.C. 460, 55 S.E., 120.
It was applied in cases exactly like that here under consideration in State v. Floyd (Minn.), 63 N.W., 1096;Trombley v. State (Ind.), 78 N.E., 976; State v. Barrington (Mo.), 95 S.W. 235.
The judgment of this Court is that the judgment of the Circuit Court be affirmed.
June 17, 1909.