I regret the necessity of writing a dissenting opinion to that of Mr. Justice Stukes.
It is without dispute that the jury which convicted appellant of assault and battery with intent to kill had as a member of its body a juror who was not a resident of Greenville County, but was, and had been for some time, a resident of Spartanburg County. Before the selection of the jury which sat upon this case the Presiding Judge ascertained the qualifications of the jurors and in response to his inquiries did not receive any notice of disqualification pertaining to any juror. The members of the panel either presented their registration certificates, or stated they were in possession of same, and among those certificates presented was one by W.G. Stokes, dated October 6, 1944, showing his residence as No. 4, Hardin Street, Greer Mill, Greenville County, but Mr. Stokes did not disclose to the Court, or *Page 489 any of the officials of the Court, that he was living in Spartanburg County.
After the jury had retired to its quarters for deliberation counsel for appellant was informed by a young man that he thought Mr. Stokes was a resident of Spartanburg County. This information was immediately reported to the Presiding Judge who instructed the Clerk to check the mileage of the juror as given by him at the convening of Court with the residence on the certificate. The check or investigation on the mileage basis was satisfactory, and it was then assumed that the juror did reside at No. 4 Hardin Street, Greer Mill, Greenville County, although it later developed, following the verdict of the jury and before the argument on motion for a new trial, that there did not exist any street in Greer Mill having the name of "Hardin".
After the publication of the jury's verdict, and before sentence, counsel for appellant moved for a new trial on the ground that W.G. Stokes was not a resident of Greenville County and therefore not a qualified juror, and presented to the Court affidavits which established the residence of Mr. Stokes in Spartanburg County beyond any doubt. The Presiding Judge overruled the motion, holding that he was bound by the law as stated in State v. Amburgey, 206 S.C. 426,34 S.E.2d 779; that appellant waived his rights when, upon receipt of the information, he did not move to have the juror brought from the jury room and examined, and, further, that appellant did not raise the question until after the return of the verdict. The last-mentioned basis for the refusal to grant the new trial may be disposed of at this time for it is patent that the question was raised before the rendition of the verdict and during the deliberation of the jury. The issue then resolves itself into the query, was appellant or his counsel wanting in diligence in not ascertaining, before trial, the qualifying residence of a juror? There is, of course, the second proposition that having received this information during the trial, was there lack of diligence to constitute waiver? *Page 490
Section 608, Vol. I, Code of Laws, 1942, directs that the jury Commissioner "shall in the month of December of each year, prepare from the official enrollment books of qualified electors, a list of such qualified male electors, under the provisions of the Constitution, between the ages of twenty-one and sixty-five years, of good moral character,of their respective counties * * *." (Italics added.) The portion of this Section is quoted in order to bring to the foreground the requirement of residence in the county of the venue, which residence is fundamental in the qualifications of a juror. It is from this list that the petit juries for the different terms of court are prepared or drawn and then notified by the Sheriff.
It is a frequent occurrence that from the time the official enrollment books are closed and the preparation of a "list of such qualified male electors" completed by the jury Commissioners there will be removals from the county of male electors on the list, and such removals occur after the preparation of the list and before the drawing of the petit juries. The jury Commissioners have the right to act upon the assumption that the male electors whose names appear upon the enrollment books are residents of the county; otherwise it would be imposing upon them an almost impossible task of checking the residence of each man on the "master list". And likewise the jury Commissioners act upon the same assumption in the drawing of petit juries, unless there is actual knowledge to the contrary. It is difficult to understand why an attorney should be charged with a greater degree of diligence than those men whose statutory duty it is to prepare lists and juries of male electors.
The situation is not the same as where a juror does not present his registration certificate or have one in his possession, for the enrollment books list the names of those who have been issued the certificates, and the elector's status as to a registration certificate is not subject to change during a ten-year period from the date of the certificate, but *Page 491 his status as to residence may change at any time. In the discussion of diligence on the part of anyone in discovering the disqualification of a juror it is apparent there is a fundamental difference in the ownership of a registration certificate and residence of the owner or holder, for the former is static for at least ten years while the latter is changeable at any time. It would be most unfortunate for the rule of due diligence to require an attorney to go into the towns, cities, highways and byways to investigate the residence of those called to serve upon juries for such activity on the part of the legal profession would tend to create grave suspicion that evil influence was in the process of being exercised upon the prospective jurors. This Court, ever vigilant in the protection of the rights of all, and jealous of its own honor and integrity, should likewise be alert not to place upon the legal profession a duty which would even create the appearance of evil.
The Legislature did not so intend when it passed Section 639, Code of 1942, nor did that Body change the scope of the due diligence rule in the passage of the Act, which Section is as follows:
"All objections to jurors called to try prosecutions, or actions or issues, or questions arising out of actions or special proceedings in the various courts of this State, if not made before the juror is empaneled for or charged with the trial of such prosecution or action, or issue, or question arising out of actions or special proceedings, shall be deemed waived; and if made thereafter shall be of none effect."
The foregoing Section has application only to disqualifications of jurors which are known to counsel before trial or could have been ascertained with due diligence. It would indeed be a paradox to place upon the members of the legal profession a greater duty than upon the officials directly charged by the Statutes of this State to prepare, draft and summon qualified jurors.
The 1939 amendment to Section 608 provides that the Presiding Judge "shall at each term of Court, ascertain the *Page 492 qualifications of jurors by having them present to the Clerk of Court their registration certificates, or other satisfactory evidence that they are qualified electors: * * *" When counsel for appellant presented to the trial Judge — the highest authority — information that one of the jurors was not qualified, he proceeded to act by having the Clerk of Court check the mileage as given by the juror with the alleged residence, which mileage checked. The trial Judge concluded that the juror was qualified and he was the sole and highest authority on the issue. Although counsel for appellant, as well as the trial Judge, assumed the alleged address was correct, nevertheless the decision as to the qualification of the juror rested upon the Court, not counsel. When the address proved to be incorrect it became the duty of the trial Judge to correct his error though made in good faith and based upon a false but unknown premise. The writer cannot agree that counsel should have pursued the matter to the extent of demanding that the trial Judge call the juror from the jury room to be examined as to his residence since the trial Judge had concluded that the juror was qualified and this conclusion or assumption was a ruling by the Court on the point, and made in conformity with the 1939 amendment to Section 608. Had counsel for appellant gone to the Clerk of Court upon receipt of the information, instead of the trial Judge, and stopped with the investigation as made by the Clerk, then he could have been charged with lack of diligence by not requesting the examination of the juror; but he went direct to the Presiding Judge and placed the question in his hands.
It necessarily follows that Section 639, supra, is not controlling nor designed to control the state of facts as found in this case. Neither is the case of State v. Amburgey, 206 S.C. 426,34 S.E.2d 779. In that case the question was not about the residence of a juror, but as to his failure to have a registration certificate, and at this point we refer again to the vital difference between residence as a qualification for a juror and the possession of a registration certificate. One of the jurors, W.B. Perry, was not a registered *Page 493 elector but he had the same initials as a qualified elector who resided in the same county. His failure to possess the certificate was not discovered until later during the week when a jury was called in another case. At the opening of the term of court the Presiding Judge did not ascertain if any of the petit jurors were qualified electors, nor was he requested to do so by defense counsel at this time or at any other time. The jurors were presented and separately examined upon their voir dire and counsel for the defense exercised the right granted by the Court of asking questions of jurors as to qualifications, but did not ask any question with reference as to whether this (or any other) juror was a qualified elector. This Court held that counsel for the defense "having failed to make any timely suggestion to the presiding Judge that he should have the jurors present to the Clerk of Court their registration certificates or other satisfactory evidence that they were qualified electors, waived such requirement". Counsel for the defense in the Amburgey case did not make any efforts towards ascertaining the qualifications of the jurors, and in failing to do so, particularly in failing to request the trial Judge to have the jurors present to the Clerk of Court their registration certificates, waived such requirement; and it is likewise apparent that counsel could easily have requested the trial Judge to have the jurors to present their registration certificates, and the fact that one juror was not qualified in that respect would have been discovered then and there, which case falls by the majority holding of the Court, within the lack of due diligence rule.
The case of State v. Logue, 204 S.C. 171,28 S.E.2d 788, is likewise of no force and effect in the present instance. Logue, the appellant, was convicted of murder and moved for a new trial on the ground that the trial Judge failed to comply with Section 608 of the Code of Laws of 1942, in that he did not ascertain the qualifications of the jurors by having them present to the Clerk of Court their registration certificates or other satisfactory evidence that they were qualified electors, which motion was refused. It appears from the opinion in the case that although the trial *Page 494 Judge did not ascertain the qualifications of the jurors in accordance with Section 608, there was nevertheless no timely suggestion made to him by counsel that this be done, andthere was no showing whatsoever that any of the jurors werein fact disqualified. Therefore, it was presumed that all the jurors were qualified electors.
It is true in this case the lack of residence on the part of Mr. Stokes to make him a qualified juror could have been discovered if counsel had gone out and checked the residence of each and every juror called for that term of court, but that is not and should not be required of counsel as a part of their diligence in representing litigants. As stated by the late Chief Justice Bonham while acting as Associate Justice, in the case of State v. Elliott, 169 S.C. 208, 168 S.E., 546-548, "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; * * *"
The lack of qualification of the juror was brought to the attention of the trial Judge and he concluded that such juror was qualified, but such conclusion or ruling was made upon an erroneous state of facts, which error was not brought to light until after the case was concluded. When the true residence was discovered it then became the duty of the trial Judge to in effect reverse himself and grant a new trial.
The judgment of the lower Court should be reversed and the case remanded to that Court for a new trial.
Mr. ASSOCIATE JUSTICE TAYLOR concurs.