The opinion of the court was delivered by
Haskell, A. J.The motion to quash the indictment in this •case was upon two grounds:
1. Because the jury commissioner who aided in drawing members of the grand jury “ was the husband of a cousin of the ■deceased.”
2. Because the solicitor “ had, under the direction of the court, free access to the grand jury, and did visit the same before and ■ •during the day they had under consideration the bill of indictment in this case.”
The appeal is from the refusal of the Circuit judge to grant the motion. As to the first ground, the testimony is that the wife of the jury commissioner is a cousin of the deceased in the fourth or fifth degree, and there is no evidence of affinity other .than that incident to such connection. There is no consanguinity Between the jury commissioner and the deceased, and the degree •of affinity shown is remote — too remote to be of itself evidence of bias or prejudice against the person charged. The case of State v. McQuaig, 5 S. C. 429, was decided upon the ground that the jury commissioner was a near blood relation — first cousin of the deceased. It is unnecessary, perhaps impossible, to. draw an absolute line to mark what degree of relationship or affinity must control in such cases; but it is sufficient here to say that in the present case there is no relationship by blood, and no evidence of such affinity as, of itself, would reasonably lead to the presumption that the jury commissioner would thereby be affected, in such manner as to impair the proper discharge of his duties.
As to the second ground, the evidence is that the solicitor did go to the grand jury room, “ at the request of the foreman, * * * and instructed him how to write the findings, but that he had not been in the room while the case of the prisoner was under •consideration.” The evidence is conclusive on the point in question ; but this court does not hesitate to say that the solicitor has *95•on many occasions the right and the duty to communicate with the grand jury as to the manner in which the business in their hands is to be conducted. It is the established practice for the Circuit judge to instruct the grand jury to apply to himself, or to the solicitor, for such further instruction or information as they may deem necessary. The solicitor is a sworn officer of the state, and responsible for the proper discharge of the duties of his office; he is presumed to have the power to discriminate between matters on which he should or should not communicate with the grand jury, and error must be shown and not presumed. The case of State v. Addison, 2 S. C. 356, is entirely different, and not applicable to the point now under consideration. In that case it was not a solicitor whose conduct was in question, but an attorney who was conducting the prosecution, and who was, further, a paid attorney, retained to aid in the.prosecution. The facts were entirely different, for, in that case, the attorney actually interfered with the grand jury in their consideration of the bill, and argued the case in the grand jury room. Here there were no such circumstances; but this much is said to indicate that there is a broad distinction between the solicitor — an officer of the state — and one Avho acts merely as an attorney-at-law to aid in the prosecution. The ruling of the Circuit judge must be sustained.
The first ground for new trial is that the judge erred in allowing the state, when the petit jury was being empaneled, to cause jurors to “stand aside” without challenge, and without cause shown. The, practice pursued in this respect by the Circuit judge has been long since established, and no law or sufficient reason has been advanced to show why it should be changed. State v. Barrontine, 1 N. & McC. 553; State v. Wise & Johnston, 7 Rich. 412. The order to stand aside for a time is distinct from a challenge, and is not affected by the act of 1871 (14 Stat. 690), which confers upon the state the additional right of peremptory challenge to a limited extent. The ruling of the Circuit court as to this point is sustained.
The second ground is that the judge erred “in withdrawing from the consideration of the petit jury, charged with the trial, * * * the testimony of J. S. Grimes, a witness on the part *96of the prosecution, after he had testified.” It appears, by the judge’s report of the case, that the witness was allowed to be withdrawn at the instance of counsel employed to assist in the prosecution, and that the accused, although he insisted on his right, was not allowed to cross-examine the witness prior to his being withdrawn, although the judge does say that he would have been allowed to call the witness back at some other time to be cross-examined. It is difficult to see how this would have helped the accused, for the witness was practically set down on the ground that he was drunk. Whether or not he was drunk was a question on which no one but the jury was. to reach a conclusion so as to affect the case; but, even if the judge had the power to decide that the witness was drunk, he could not either take away from the jury the testimony already given, nor could he deprive the accused of the right to immediately cross-examine. Suppose this witness had been the last, (perhaps it was so,) when could the prisoner have called him back ? He could have been, deprived absolutely, as he was substantially in this case, of one of the most inestimable rights which belong to those who are-tried for crime. The fact that the appellant was deprived of his right to cross-examine the witness before his removal and withdrawal is not contained in the grounds of appeal, but is in the report of the judge. It is urged that the appellant had thus waived his right to appeal from such action of the court below. The same rule does not apply in this respect to civil actions and to trials involving human life. This court is bound, in a capital case, to take notice, in behalf of the accused, of any error apparent upon the record by which the prisoner has been deprived of any of the substantial means of enjoying a fair and impartial trial. As already indicated, it was not the province of the judge to decide that the witness was drunk, nor was it proper to decide that the evidence was immaterial and must be withdrawn. The evidence related to the question in issue, and could not, in a proper sense, be called immaterial; while its materiality, as measured by its weight or value, was a question solely, for the jury. Either of the reasons would give sufficient ground for new trial. But the right to cross-examine is one which must remain inviolate. To take it away would render almost value*97less the constitutional right “to meet the witnesses'against him face to face.” Const., Art. I., Sec. 11. It is the law of evidence that “when a witness has been examined in chief, the other party has a right to cross-examine him.” 1 Greenl., § 445. “ The power of cross-examination has been justly said to be one of the principal, as it certainly is one of the most efficacious, tests which the law has devised for the discovery of truth.” lb., § 446. The right loses its efficacy if its exercise is to be postponed until the witness has had time to reflect or to be subjected to evil influences. It is unnecessary, perhaps, to say more on this point. The law is too plain to require authority. The prisoner was practically deprived, though, doubtless, unintentionally so, of the right to cross-examine the witness produced against him — one of the most inestimable rights by which a man may maintain his defence. It is concluded, therefore, that there is material error in the action of the court with regard to the witness, Grimes: the rulings upon the character of his testimony; its withdrawal from the jury, and the practical deprivation of the right to cross-examine then and there.
The third and fourth grounds show no error, and do not require particular consideration. The fifth ground has been already disposed of.
The judgment of the Circuit Court is therefore set aside, and a new trial granted.
Motion granted.
Willard, C. J., and McIyer, A. J., concurred.