I agree with Mr. Justice Cothran that the judgment below will have to be reversed, because the verdict of the jury should not have been received and recorded.
We have no statutory regulations as to sealed verdicts. Perhaps we should have, since they are allowed so often, not only in civil but in many criminal cases. And they aid much in relieving the arduous duties of jury service. To *Page 246 reverse this case, because the supposed verdict of the jury was improperly received, is to encourage, I fear, the tampering with jurors who have been allowed to return a sealed verdict after they have agreed upon their verdict and have separated. On the other hand, to sustain the reception of the verdict in this case is to give a majority of a jury, and even the foreman alone, the right to announce that a verdict has been agreed upon when such is not the truth. The situation is bad, whatever the decision of this Court may be, and only tends to further establish how dangerous in the administration of law is the custom so generally now prevailing to allow sealed verdicts. Fortunately, for the cause of justice in South Carolina, it is not often that we have a juror like Mr. Mitchell, in this case, who made an affidavit that he had not agreed to the verdict, and made a counteraffidavit that he had agreed.
Frankly, with the view of trying to sustain the lower Court, I have made an exhaustive research of the authorities pertaining to the subject under consideration, and especially the decisions of our own Court. In addition to the authorities cited by Mr. Justice Cothran, I call attention to the views of well-known writers and cases decided by our Court.
As to a sealed verdict, this general principle is laid down in Ruling Case Law: "In this country, by way of substitute for a privy verdict, and to attain the same end of allowing the jury to separate after they have come to an agreement, a practice has been adopted in civil actions, and in cases of misdemeanors, at least, if not of all but capital crimes, of directing the jury, if they should agree during the adjournment of the Court, to sign and seal up their finding, and come in and affirm it at the next opening of the Court; but the verdict which determines the rights of the parties, and is admitted of record, and on which judgment is rendered, is the verdict received from the lips of the foreman in open Court." 27 R.C.L., 836. *Page 247
In Perry v. Mays, 2 Bailey (18 S.C.L.), 354, the opinion of Judge Harper, approved by the Court, was to the effect that if one of the jurors, when the verdict agreed on is to be delivered in open Court, expresses his dissent to it, it is no verdict; although the jury had been permitted, with consent of the parties, to separate after they had agreed.
The decision in the case of Perry v. Mays was approved and followed in the case of Devereux v. Champion PressCompany, 14 S.C. 396.
When the jury was polled, and juror Mitchell announced that the verdict attempted to be rendered was not his verdict, it was the duty of the Court, unless something appeared to show that a just verdict could not be rendered, to require the jury to return to their room and consider the case further.
"When the jury is polled, any juror may dissent from the verdict as announced, and in such case the jury may be sent back for further deliberation." 16 C.J., 1099.
To the same effect is the case of Clyde v. Southern PublicUtilities Company, 109 S.C. 290, 96 S.E., 116. In that case, where a sealed verdict was permitted to be rendered, the jury announced during the night their agreement and were allowed to disperse. On the following morning, they came into Court, and when assembled, stated to the Judge that they did not understand how to write their verdict, and requested further instructions, which were given. They were sent back to their room and soon returned their verdict, which was received by the Court, and this action was approved by the Supreme Court.
The case which absolutely decides the proper course of procedure, in my opinion, is that of Lagrone v. Timmerman,46 S.C. 372, 24 S.E., 290, 297. The appellants there had for their twelfth exception the following: "Because the presiding Judge erred in ordering or permitting the jury *Page 248 to retire and resume the consideration of the case when they had once dispersed, thinking that they had agreed upon a verdict, when, in fact, they had not." In disposing of that exception, the great Judge, Hon. Henry McIver, speaking for this Court, only said, "the twelfth ground of appeal cannot be sustained." Evidently he regarded the question absolutely settled in this state by the former decisions.
I do not think the cases cited by Mr. Justice Carter support the conclusion he has reached, as will be noted.
Martin v. Maverick, 1 McCord (12 S.C.L.), 24, andState v. Wise, 7 Rich. L. (41 S.C.L.), 412, both held that a jury could not be polled but at the discretion of the Court. That question is not up here.
Wannamaker v. Traywick, 136 S.C. 21,134 S.E., 234, and State v. Cash, 138 S.C. 167, 136 S.E., 222, decided that it is improper to impeach the integrity of a jury's verdict by affidavits of the jurors. That question is only incidentally involved here. I agree with Mr. Justice Cothran that the affidavits submitted as to the verdict of the jury were improperly received. The cases mentioned and the decision in State v. Long, 93 S.C. 502, 77 S.E., 61, seems to me to be conclusive of that matter.
MR. JUSTICE STABLER and MR. ACTING ASSOCIATE JUSTICE GRAYDON concur.