The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1886-02-10
RECALL OF JURORS.
Before the Jurors Get Beyond the
Call of the Court they are Ordered
Back--But n Juror who has Been
Excused Ceases TO be Juror. and
he Cannot be Again psut Upon the

Excused SeiaSeS ~ Oc 1uIOA. s'h>'
he Cannot be Again put Upon tIae
Panel.
In q short time after their discharge 4 rumol
reached the Court room to the ef1ect that Lr
Pressly had arrived. The Solicitor lmmcdl'
ately had the Court crier to call hlm, IA ana soon
DIR. PresSiy was present in Court: The jurors
not having gone beyond the call OF the Coufl
they were Immediately called back. After
hurried consultation among the counsel inter
ested in the case, the legal question as tC
whether the Court could put juror on duty
alter he had been discharged was argued Win
earneStnCSS.
Col. Eugene B. Gary made the opening re-
marks, which were somewhat after tins man
ner: Owing to the limited time we have had,
we have no authorities bearing directly on
this case. 1t is Il rare thing to find case anal
agous to this. There seems to be no definite
law on the subject as to when the powers Oh
Jurors cease. Your order this morning was
merely an oral order, which we hold you can
rescind at any time before the formal entry OF
the same is made in the books. Even If the
Judge signs an order he has the right TO win
draw it during the term time OF the Court.
My main point is. that your order discharglne
the Jury is merely an administrative order,
which may be revoked.
The JudSe-Of course I recognize the diff
Guilty in finding authorities on such an anon
ulous condition of affairs, and counsel may
have time to look up their authorities.
Mr.. Benet-May it please your Honor: IL
seems to me that there are two points 70 be
considered in discussing this question. First,
as to the effect OF your Honors discharge of
the jury. Second, as to the defendants right
to waive all objection.
l. AS to an order:
understand from the officers Of the Court
that no record of the discharge has been en-
tered on the minutes of Court. 1T was dis
puted that Judge can during the term time
revoke any order he has made, even though
that order had been made in writing. 1t
f1,pfn npn1 rI1fr
be revoked much more easily. Your Honor
recollcctS the recent case in 81 :. g., George
town case where the Supreme Court holds
that Judge Aldrich had the right To correct an
that correction was made by him after term
time The difficulty that sometimes has pre-
vented Judges from revolving orders in the
General Sessions does not here exist, as there
is as yet no record OF the order in the jour
nal. I well remember two instances when
your brethren of the bench in this Court
would have changed an order passed but for
the fact that it had been recorded. From this
be recalled, Is it not still within your dscre-
ton? 1t was in the exercise of your diScrc-
ton that you discharged the jury; If they are
still within your jurisdiction, cannot Il like
exercise of your discretion recall them?
confess that the case of the state against
Whitman, II Richardson, would seem to mill
tate against this doctrine for it is there held
by Judge War'llaw that juror who has been
excused, ceases to to he juror, and he IS to
be considered as if he had never been drawn,
but the Judge goes on to advise that there
should be some memorial some record of his
discharge left in the Court as evidence OF IT..
Since that decision. our rules of Court have
adopted Judge WardlaW's suggestion, and IT
is now ,he law that there must be a record Of
such discharge or excuse in the form of an
affidavit Of the juror. endorsed by the Judge.
respectfully submit that the case OF the
State against Whitman should not under the
ri n I'M a
your Honor from withdrawing an oral unre
corded order.
.. AS to the doctrine of waiver:
But should your Honor consider that the
doctrine of Whitman's case is conclusive and
binding, is it not for the defendant alone to
object to the recall of the jury? He may
have objections, TO any ircgularity, but
but is not the irrcgu!arity rcmedied
and the objections removed by his right
of waiver? In this case he valves all
right to object, and the question isis this
such an objection which he has not the right
to waive? For your Honor well knows that
the Court will not permit n defendant ac
cused of crime to waive all his rights. | am
free to say that could find in the few min
utcs at my disposal no authority that is pat
Il pom this point. but have here several au-
thOriticS as to the accused right TO waive,
with instances OF what rights he may waive.
Here is one, which holds that the prisoner
can waive his right to Oe present during the
trial. Here is another which holds that the
prisoner can waive his right to he tried by
jury of twelve men, and to consent to he tried
hya less number. There are numerous ALL
thoritics which hold that amy objection TO the
jury known to the prisoner before trial must
be made by the prisoner before the trial be-
gins: otherwise he is held by his silence to
lave waived his right to object. 1t has even
been held that II defendant can waive his
right to be tried by jury at all. and submit
his case to the Judge. The uniform doctrine
is, that all such rights are simply personal
privileges, which the accused may insist on
or waive at his option.
Applying these doctrines 10 this case, and
reasoning by analogy. it seems to me that
John Ferguson alone should be heard OBJ
jccling to the recall of tic jury, and as he
valves this right to object, what is there 10
~ the State can't object. To prnrrcd to this
trial at once would he in the interest Of cculi-
Omy Of time, money and trouble, auu the
State has been arguingal week against delay,
expense. and trouble in getting Il jury.
The Judgc-ls 1t necessary to enter IN" rX-
cuSc of Il juror on the minutes of tho Court:
Is it customary to enter the discharge OF the
jurors at the close t the Court:
Mr.. Bcnet, after consulting with the Clerk
of Court. said: The Clerk informs me that 1t
Is so. And your Honor rccoilcctS that the
grounds of excuse arc put III the form ol an
il that the order discharGing the jurors cant
he irrevocahlc, no matter whether the num-
ber be three or thirty-siX. II would not he IT.
revocable during term time, even if the re-
cord had been down on the books.
Solicitor-1t is necessary to proceed regular
cannot bc waived.
! listened attentivrly to til" authority which
the counsel on tho other side read. The one
from II Richardson which he first referred
your Honor to Is the only one that affects the
question. 1t is conclusive that no juror can
ln1.l ln\ vi 1iS,l, rf,1