Summary
In State v. Meehan, 160 S.C. 111, 158 S.E., 151, 158, the rule is stated as follows: "The conduct of a trial must be left largely to the discretion of the presiding Judge.
Summary of this case from State v. McGillOpinion
13104
March 19, 1931.
Before BONHAM, J., Chesterfield, February, 1930. Affirmed.
Parnell Meehan was convicted of bribery and appeals.
The charge of Judge Bonham and the exceptions thereto are as follows:
CHARGE OF JUDGE M.L. BONHAMMr. Foreman and gentlemen of the jury, the Court desires to express to you its appreciation of the great degree of patience you have exhibited in the hearing of this case under somewhat difficult circumstances. The Court conceived it to be its duty, in the interest of fairness and justice, to keep you together during the trial of this case, and that has brought about some degree of discomfort to you, as I can readily understand. It has separated you from your families and from your businesses, and you have borne this in an exemplary manner and with patience.
I shall be brief in my endeavor to convey to you my view of the law in this case. The law pertinent to this case is in a somewhat circumscribed area, and it is always my policy not to speak at length to juries upon questions of law, lest I confuse them by too much talk, so I shall try to give you fully, as concisely as I can, the principles of law pertaining to this case, so that you can bear them in mind, and when you go to your room to find the facts from the testimony you have heard, you may apply the law as I give it to you to the facts as you find them to be, and so arrive at your verdict.
The defendant at the bar, Mr. Meehan, is charged by this bill of indictment with the offense of bribery; the allegation of the indictment being that he did, on the day named in the indictment, to wit, on or about the 5th day of June, 1929, willfully and unlawfully and corruptly offer to give and did give and pay a sum of money, to wit, the sum of $95.00 lawful money of the United States, to one George W. Gregory, then and now a member of the County Board of Commissioners of Chesterfield County, etc. (Here the Court read the indictment to the jury.)
To that indictment, the defendant has pleaded not guilty, and, as is always the case when such a plea is entered, it casts upon the State the burden of proving the guilt of the defendant beyond a reasonable doubt. Now, gentlemen, that means just exactly what those two plain English words themselves imply, a doubt for which you can give a reason, a sound and sensible reason; and that doubt must arise out of the evidence in the case or a lack of evidence in the case. It does not mean a whimsical doubt or a fanciful doubt, such as a man of acute imagination might conjure, but such a doubt as a man of ordinary sense and reason would act upon in the conduct of his own business affairs. It is, as I say, such a doubt as the two words themselves imply, a doubt for which you can give a sound and sensible reason; and, if such a doubt as that arises in your minds upon your consideration of this case, then the defendant is entitled to that reasonable doubt, and to an acquittal at your hands.
Let me say right here that you gentlemen are the sole judges of the facts in this case. I think I had occasion to say to a jury here the other day in your hearing that, prior to the adoption of the Constitution of 1868, it was not only permissible, but it was a right exercised by the Judges of this State, to convey to the juries their impressions and their belief of the force and effect of the testimony and evidence in the case as it was called, "marshaling the evidence," but there gradually grew up the feeling that certain of the Judges abused that right, and therefore the Constitutional inhibition was put in and the jury were made the sole judges of the facts in the case; and so exceeding careful and jealous is the law to guard your right to have exclusive control of the facts in any case, to be the sole judges of the facts, that, if a Judge should intimate to you, unintentionally or indirectly even, any opinion that he might have of the force and effect of the evidence, it would be reversible error.
Now, while that organic law makes you the sole judges of the facts in the case, that same law makes me the sole Judge of the law applicable to the case. I may not step across the boundary line into your domain of the facts; and you may not step across that line into my domain of the law. I must take the facts as you find them from the evidence, and you must take the law as I give it to you; but there is this difference in our respective functions, there may be an appeal if I commit error in declaring the law to you, but there can be no appeal from your finding of the facts. If I commit error in declaring the law to you, there lies an appeal to the Supreme Court which sits over here in Columbia for the purpose of correcting errors of law; but there is no appeal from your finding of the facts. Those, now, are our respective functions in the trial of the case.
As I stated a while ago, the defendant here is charged with the offense of bribery. Bribery at common law is the giving and accepting of something of value to influence an officer in the discharge of his official duty; to have him do, or forbear the doing of, something that will inure to the benefit of the person offering the bribe. The Legislature of South Carolina has made it a statutory offense, and it is embodied in Section 337 of the Criminal Code, which is as follows:
"Whoever corruptly gives, offers, or promises to any executive, legislative, or judicial officer, after his election or appointment, either before or after he is qualified or has taken his seat, any gift or gratuity whatever, with intent to influence his act or vote, opinion, decision, or judgment on any matter, question, cause, or proceeding, which may be pending or may by law come or be brought before him in his official capacity, shall be punished by imprisonment in the State Penitentiary at hard labor not exceeding five years, or by fine not exceeding three thousand dollars, and imprisonment in jail not exceeding one year."
In other words, to constitute the elements of the offense made by that law which I have just read to you, there must be the offer or the giving of something of value to an officer of the law with the intent corruptly to influence his action in the performance of his official duty.
Now, gentlemen, there is an act in reference to your county which creates the office of County Commissioner, an appointive office, and when a person has been appointed to it he is an officer, I charge you, within the purview of that Act. Then there is another Act of the Legislature pertaining to your county which creates the office of tax collector; and I charge you that that office is, as to your county, within the purview of that Act.
The question here at issue is, did the defendant at the bar offer to the person named in this indictment, this officer, and pay to this officer named in the indictment, a sum of money with the corrupt intent to influence him in his official capacity to vote for T.L. Teal as one of the tax collectors of this county?
That is the issue, clear-cut and, I hope, clearly defined to you, upon which you are to pass after you have heard the evidence in this case as disclosed on the stand and the law as I shall give it to you. You will observe that the Act says that whoever shall do this act prohibited with the corrupt intent shall be guilty of a crime. In other words, there must be the corrupt intent present in order to make it a crime.
How is the intent proven? How do you prove what a man intends to do? You can't look into his mind and heart and see what his intent is; therefore, you are to depend upon his utterances, if there be any relative to the matter in dispute, and upon his acts. Now, evidence is of two kinds, direct or positive evidence and circumstantial evidence, and the law recognizes and uses both classes, but it lays this inhibition upon the use of circumstantial evidence: The circumstances relied on to prove the guilt of the accused must point to his guilt so conclusively as to exclude every other reasonable hypothesis, except the hypothesis of his guilt. So, if there be direct and positive evidence of what a person did and said, that is proven by direct evidence testified to by witnesses to the things which they have seen and heard, which knowledge has come to them through the medium of their natural senses. By that evidence it is possible to prove the intent of a person as to a particular transaction. If there be no such evidence, or, if there be that evidence and the other, known as "Circumstantial Evidence," it may be proven in that way. Circumstantial evidence is that evidence which witnesses testify to of the facts and circumstances relating to or surrounding the matter under investigation with the view of casting light upon it.
By those two means you are to ascertain what was the intent of the defendant at the bar in this transaction which has been testified to; and that relates right back to your prerogative alone, to determine from the evidence alone, the circumstances relied upon trial, what was the intent of the defendant at the bar in this transaction. However, as I said a moment ago, the law lays this inhibition upon the use of circumstantial evidence, for, while the law recognizes and uses both direct, or positive, and circumstantial evidence (because there are certain crimes of a secret nature which no one ever sees done), it says this about circumstantial evidence: Before you can convict on circumstantial evidence alone, the circumstances relied upon must point so conclusively to the guilt of the accused as to exclude every other reasonable hypothesis except the hypothesis of his guilt.
Gentlemen of the jury, we have been nearly two days in trying this case, and it would seem that there should be a great deal of law involved in it; but there is not. I have given you what, in my opinion, is all the law relative to this case. However, the State and the defendant have given me certain requests to charge and asked that I charge them, and I am going to pass upon them and charge such as are, in my judgment, applicable, with possibly a few amendments. Jurors and people generally often ask, "How is it that the Judge can give the law asked for by one side, and then turn right around and give the law asked for by the other side?" There is no inconsistency in that. It is perfectly natural. The State predicates its requests to charge upon its construction of the facts in the case, and, if you find that the facts are as the State contends for, their requests are applicable. The defense, on its part, predicates its requests upon its construction of the facts, and, if you find the facts to be as the defense contends for, then theirs are applicable; so it depends upon how you find the facts what law asked for has applicability.
This is the first request of the State:
I. "Under the provisions of `An Act to further declare the Law in reference to Chesterfield County,' passed and approved in 1920 a Board of County Commissioners is created, and one appointed under the provisions of this Act, and qualifying thereunder, is a public officer and charged with the performance of the public duties therein prescribed."
I have so charged you, and I so charge you again.
II. "Under the provisions of an Act approved March 27th, 1925, the public office of Tax Collector for Chesterfield County is created, and the appointment of such collector is vested in the Board of County Commissioners of said county as a legal, public duty."
I so charge you.
III. "Bribery at common law is not only the receiving or offering of any undue reward or thing of some value to any person, whose ordinary profession or business relates to the administration of public justice, in order to influence his behavior in office and induce him to act contrary to his public duty and the recognized rules of honesty and integrity, but also embraces any voluntary giving or receiving of anything of value in corrupt payment for an official act done or to be done. The payment or offer of a valuable consideration to a public officer to influence him in the discharge of a legal duty constitutes the offense, and relates to all persons whose official conduct is in any way connected with the administration of the government."
I charge you that that is the common law and is the law in South Carolina, except as amended or altered by the Constitution or statute law of South Carolina. I charge you that the law relating to this particular offense or transaction is embodied in Section 337 of the Criminal Code of South Carolina 1922.
IV. "Under certain statutory provisions in this State, it is made a crime to corruptly give, offer or promise to give, to any officer, after his election or appointment and, either before or after he is qualified, any gift or gratuity whatever, with intent to influence his act or vote, opinion, decision or judgment on any matter, question, cause or proceeding whatever, which may be pending or by law come or be brought before him, in his official capacity."
That is almost the exact language of Section 337, which I have already read to you and defined to you as the law in South Carolina in matters of this character.
V. "It is essential to the offense that the offer, promise or gift must have been made with the corrupt intent to influence the action of the officer in the discharge of his official duties."
I have so charged you, and I so charge you again.
VI. "It is not essential that the act sought to be attained by the corrupt offer be actually accomplished, but it is only necessary that it be such an act as is capable of being done, and that the thing of value was given with the intent to influence the doing of the act.
I have amended No. 6 in so far as I have read it to you, having added to this request as submitted the words, "And that the thing of value was given with the intent to influence the doing of the act." As amended, I charge you that.
VII. "An offer to bribe a public officer is a transgression of a public right and duty, and the consent or non-consent of the officer cannot affect the criminality of the act of the person who makes the offer, and if the words, acts or conduct of an officer be the inducing cause of the offer to bribe, yet, if one did, in fact, tender or give money, or other thing of value, to such officer with the corrupt intention and purpose of influencing his official action, such person would be guilty of the offense."
I so charge you.
VIII. "It is no defense whatever to a prosecution for offering a bribe to a public officer that the officer accepted the bribe, if it was accepted for the sole purpose of informing upon or prosecuting the accused."
I have interlined in this request as submitted the words, "If it was accepted," and, with that amendment, I charge it.
IX. "If a person knows or suspects that a crime affecting him is about to be committed, he may, without being deemed to have consented thereto, remain passive and make no effort to prevent its commission, if his purpose be that the person charged therewith may be apprehended."
I have interlined in this request as submitted the words, "If his purpose be," and I charge it as amended.
Now the defendant has also submitted certain requests to charge which I will take up:
I. "That in order to constitute the crime of bribery under Section 337 of the Criminal Code of South Carolina, it must be made to appear beyond a reasonable doubt that the gift, or offer, or promise was corruptly given, or offered, or promised."
I so charge you, as I have done more than once already.
II. "If a person makes a gift or offer or promise to an official with the bona fide intent to test the official integrity of such officer, in order to determine whether or not such officer would accept a bribe, such person making such gift or offer or promise would not be guilty of the crime of bribery under the law."
Mr. Foreman and gentlemen, if he did it with the corrupt intent to induce that officer to do some official act by which the person making the offer would be benefited, he would be guilty; but, if it appears from the evidence that his sole purpose was to test the official integrity of the officer, and he asked nothing of him in return therefor which would be of benefit to himself, he would not be guilty.
III. "If a person gives or offers or promises money or other valuable consideration with the intent not to influence such official in his official duties, but with the intent to test the official integrity of such officer and with the intent to procure evidence against such officer for breach of his official duty, then and in that event such person making such gift or offer or promise will not be guilty of bribery, irrespective of the intent of the receiver of such gift or offer or promise."
I so charge you.
IV. "If a person making a gift or offer or promise of money or other valuable consideration to an officer charged with the performance of public duties with an honest bona fide intent to test the official integrity and faithfulness of such officer in the doing of certain acts, and if such officer receives the gift or offer or promise, or other valuable consideration with a bona fide intent to procure evidence against the giver of such gift or offer or promise or other valuable consideration to procure evidence of bribery, neither the giver nor the receiver would be guilty of the crime of bribery under the law."
I so charge you. If neither had corrupt intent in it, there would be no bribery in the giving or in the acceptance of it; and with that amendment, if there be no corrupt motive on the part of either, there would be no bribery, I so charge you.
V. "It must be proved by the State beyond a reasonable doubt that the gift or offer or promise to the official to influence him was given corruptly and with the intent to influence the act or vote of the official contrary to the principles of honesty and faithfulness in the performance of the duties of such official; and if such proof is not made on the part of the State, the defendant should be found not guilty."
Which means simply what I have already charged you: That it is obligatory on the part of the State to prove all material allegations of the indictment beyond a reasonable doubt, as I have defined reasonable doubt to you.
"The State must prove all the material elements constituting the crime of bribery and all the material allegations of the indictment beyond a reasonable doubt, and, if the State fails in the proof of any of these, the defendant will not be guilty."
That is true, as I have just an instant ago said, the State must prove all the material allegations of the indictment beyond a reasonable doubt. (All of the defendant's requests were charged.)
Mr. Foreman and gentlemen, I have long been of the opinion that the commonwealth of South Carolina imposes upon its citizens no higher obligation than that of the performance of jury duty, and it is my deliberate opinion that the State of South Carolina confers upon its citizenship no higher honor than when it calls upon its citizens to perform that duty. You have in your custody ofttimes, on the civil side of the Court, the property rights, the personal rights and the rights of character of your fellowmen; and on this side of the Court you ofttimes have in your custody the lives and liberties and characters of your fellow citizens. The State says that you must be drawn from the honest citizenship of the State, must be men of good character and reputation. When you and I come into this Court, conscious of the solemn obligation that weighs upon all of us connected with it, we have but one purpose in view: We lose sight of favoritism and partisanship and lose sight of every extraneous thought or feeling, and direct ourselves to the purpose solely of ascertaining from the evidence the truth. Gentlemen, we have but one compass by which to be guided; we have but one port to reach, and that is the harbor of truth, and, having found it, there we cast our anchor, and there we abide, because we have reached home and have performed our duty.
Now I commit this case to your hands with the injunction that you keep before you the sole purpose to ascertain the truth, take the testimony, and calmly, dispassionately, dissect it, and deduce from it the truth, and, having found the truth, declare it by your verdict.
You may write your verdict on the back of the indictment under the word "Verdict." If the State has proven the guilt of the accused beyond a reasonable doubt, your verdict will be "Guilty." If the State has not so proved it, your verdict will be "Not Guilty." You are entitled to any of the exhibits which have been put in evidence which you desire to have with you. Take the record and find your verdict.
EXCEPTIONS AS TO JUDGE'S CHARGE"11. His Honor erred, it is respectfully submitted, in charging the eighth request of the State, because in so doing he gave the jury to believe that it was his opinion that Gregory had accepted the money for the purpose of informing upon or prosecuting Meehan, when that was the primary issue in the case.
"12. His Honor erred, it is respectfully submitted, in charging the eighth request of the State, because by so doing he unduly emphasized the contention of the State and thereby practically told the jury to disregard the contention of the defendant.
"13. His Honor erred, it is respectfully submitted, in charging the ninth request of the State, because in so doing he communicated to the jury the impression that Gregory was acting with pure motive to entrap and prosecute Meehan, or at least unduly emphasized the State's contention, to the immense prejudice of the defendant.
"14. His Honor erred, it is respectfully submitted, in charging the jury: `If it appears from the evidence that his sole purpose was to test the official integrity of the officer and he asked nothing of him in return therefor which would be of benefit to himself he would not be guilty.' — Because, he attached thereby two conditions to the acquittal of the defendant when, under the law, there was only one; that is, did he act with corrupt intent?"
Messrs. Laney Chapman and Philip H. Arrowsmith, for appellant, cite: Statements of solicitor prejudicial: 104 S.C. 353; 112 S.C. 20; 88 S.C. 548. New trial should have been granted on information as to prejudiced juror: 50 L.R.A. (N.S.), 935; 146 S.C. 248; 54 S.C. 127; 2 N. McC., 79. How far discretion of Judge extends: 123 S.C. 52. What amounts to proper diligence: 54 S.C. 147; 90 S.C. 425; 55 S.C. 90; 56 S.C. 379; 74 S.C. 460; 89 S.C. 244; 123 S.C. 50; 50 L.R.A. (N.S.), 949.
Mr. M.J. Hough, solicitor, and E.D. Blakeney, for respondent.
March 19, 1931. The opinion of the Court was delivered by
The indictment in this case charged that the appellant, "on or about the 5th day of June, 1929, with force and arms, at Chesterfield court house, in the County and State aforesaid, did willfully, unlawfully, and corruptly offer to give to and did then and there give and engage to pay a sum of money, to wit: $95.00 of legal money of the United States, to George W. Gregory, then and now a member of the County Board of Commissioners of Chesterfield County, South Carolina, an appointive tribunal and body as a bribe for the said George W. Gregory, as such member of the County Board of Commissioners of Chesterfield County, in the State aforesaid, to vote and use his influence for the appointment of one T.L. Teal as a tax collector in and for the County of Chesterfield, in the State of South Carolina, said County Board of Commissioners being at the time aforesaid and now authorized and empowered to appoint one or more tax collectors under the law for the aforesaid County of Chesterfield, in said State, against the form of the statute in such cases made and provided and against the peace and dignity of the State."
The indictment was framed to cover the crime commonly referred to as "bribery," as defined and described in Section 337 of the Criminal Code of 1922.
The trial resulted in a verdict of guilty and the sentence of the Court thereupon that the appellant be confined at hard labor for a period of one year upon the public works of Chesterfield County or for a like period in the state penitentiary, and that he pay a fine of $1,000.00.
There are fourteen exceptions to this Court, but appellant's counsel have conceded that these raise only three questions.
That the questions to be decided may be well understood, we give a brief statement of the evidence developed at the trial from the standpoints of both the prosecution and the appellant.
The appellant, as a member of the House of Representatives from Chesterfield County, with the other Representative and the State Senator, had the duty of recommending to the Governor appointments of the Board of County Commissioners for the County. Along with the other members of the legislative delegation, he recommended George W. Gregory, the prosecuting witness, for appointment as a commissioner. The commissioners, under a special statute, are charged with the selection of a tax collector for the county.
According to Gregory, the prosecuting witness, after he became a member of the board, he was approached by appellant in the interest of the appointment of T.L. Teal as tax collector, and was offered and paid money by the appellant for the purpose of securing Gregory's vote for Teal. Gregory contended that he had information that the appellant was given to corrupt practices in public affairs; that he permitted himself to be approached by appellant in the interest of Teal, and accepted the money offered by the appellant, for the purpose of securing evidence against the appellant and having him prosecuted. Shortly after receiving money from the appellant, Gregory reported the matter to Senator W.J. Perry, and these two had a conference with Solicitor Hough. Following the conference, Gregory placed the money he had received from the appellant with the Clerk of Court of the County.
The appellant's defense was that, after he had promised to recommend Gregory for appointment as a commissioner, he ascertained that Gregory was not a proper man to hold the office, as he would likely accept bribes for his votes and influence as a commissioner, and that, for the purpose of having him removed from office, he set about to secure the necessary evidence to disclose the misconduct of Gregory, that the money which he offered, and actually paid, to Gregory was offered and paid with no corrupt intent on his part, but to carry out the honest purpose he had in mind of serving the public good. It was shown in the evidence offered by the appellant that, upon one occasion when he paid money to Gregory, the transaction was overheard by two persons through the operation of a dictaphone. This transaction occurred after the alleged payment of $95.00 to Gregory by the appellant, upon which the indictment was based. Gregory admitted the receipt of this last payment of $50.00, claiming, however, that it was received for the same honest purpose of exposing the appellant and after he had conferred with Senator Perry and Solicitor Hough, and this amount was also placed by Gregory with the Clerk of Court.
After Gregory had caused a warrant of arrest, charging the appellant with "bribery," to be issued, the appellant accused Gregory before the grand jury with accepting a bribe. The grand jury returned indictments against both Gregory and the appellant, but the record shows that Gregory has not been tried.
Exceptions 1 to 5, inclusive, refer to a matter connected with the argument of the solicitor, who opened for the prosecution. At the conclusion of the solicitor's address to the jury, before commencing his argument for the defense, appellant's counsel made this statement: "In order to preserve our rights I would like to call your attention to, here — the solicitor stated before the jury that when Gregory came to him, the solicitor related before the jury the conversation between him and Gregory and Dr. Perry. All of that was ruled out, and the solicitor related that before the jury and told the jury what he told Gregory and what Gregory told him, and that was all ruled out in the testimony because Meehan was not present, but the solicitor related that and we take exception to it."
The presiding Judge said that he did not recall whether the testimony referred to by counsel had been ruled out or not, but that he would have the stenographer investigate the record during argument of appellant's counsel, and that he would instruct the jury not to pay any attention to what the solicitor had said if the testimony had been ruled out.
After the conclusion of appellant's counsel's argument, the following occurred, according to the transcript of record:
"Mr. Hough: Your Honor called my attention to something I might have said in my argument in relation to a conversation in substance between myself and Mr. Gregory and Dr. Perry in the hearing of the jury.
"Now, Gentlemen of the jury, if I said anything in my argument this morning, made hurriedly, if I said anything that the testimony did not reveal, I desire to withdraw it. I will not misstate intentionally the testimony to any jury.
"The Court: No, sir, I know that and the jury will understand that."
The Court recessed for the noon hour, and, in the afternoon, Hon. M.L. Smith, who was assisting the solicitor in the prosecution, closed the argument.
The matter was again called to the attention of the Court on the motion for a new trial, and it is from the ruling then made that the exceptions under consideration relate. After announcing one of the grounds of the motion for a new trial to be the statement made in the solicitor's argument, counsel for appellant said to the Court: "Now, may it please the Court, I called the attention of the Court to that matter on yesterday, and the Court took cognizance of it and, I think, told the jury at the time to disregard that conversation."
In disposing of that particular ground of the motion, the Circuit Judge gave as his reasons for not sustaining it the following: "That conversation had been ruled out, but the purport of it had gone to the jury in this wise: The witness was not allowed to state the language which passed between him and the Solicitor, but he was asked what he did in view of that conversation, and that was admitted. The whole effect of that conversation was legitimately in evidence, and I do not think that the statement by the Solicitor could have done any harm with as intelligent a jury as that was, even if it had not been corrected. It would have been corrected immediately, if it had been brought to the attention of the Court immediately when uttered. It was brought to the attention of the Court after the argument, and the Court had the stenographer to look up the record, and it was found that it had been ruled out, and he brought it to the attention of the Solicitor, who asked the jury not to pay any attention to it, and the Court cautioned the jury not to pay any attention to it. I do not think any harm could have occurred to the defendant on account of that."
It is quite impossible for us to say from the record in this case if the language used by the Solicitor in his argument, complained of by the appellant, was objectionable or not. The proper course to be pursued when counsel, in argument, misquotes testimony, or goes out of the record in the case with improper argument, is for the opposing counsel to immediately object and have a record made of the statements or language complained of, and ask the Court for a distinct ruling thereon. White v. Southern Railway Co., 142 S.C. 284, 140 S.E., 560, 57 A.L.R., 634, and cases there cited. We have here only the statement of opposing counsel, made after the Solicitor's speech that the Solicitor had used before the jury testimony which the Court had ruled incompetent. None of the language used by the Solicitor in his argument is reported. That should have been set out. Faris v. Telegraph Co., 84 S.C. 102, 65 S.E., 1017.
Conceding, however, that the Solicitor stated to the jury some part of a conversation which had occurred between Gregory, the prosecuting witness, Senator Perry, and the Solicitor, after such testimony had been ruled out by the Court, we are still unable to hold, under all the circumstances, that there was prejudicial error to the appellant. While the stenographic report in the record before us does not disclose the fact that the Circuit Judge warned the jury not to consider any improper remarks of the Solicitor at the time the Solicitor withdrew, or attempted to withdraw, such remarks, it does appear from the transcript of record that the jury were warned not to consider the statements of the Solicitor complained of by the appellant, for we find in the proceedings on the motion for a new trial that the Judge said, "The Court cautioned the jury not to pay any attention to it." Counsel for the appellant recognized the correctness of the Judge's statement about the matter, for, in argument on the motion for a new trial, he said, "* * * The Court took cognizance of it and, I think, told the jury at the time to disregard that conversation."
In the absence of a sufficient showing to convince us to the contrary, we must also adopt the view of the presiding Judge when he said, "The whole effect of that conversation was legitimately in evidence, and I do not think that the statement by the Solicitor could have done any harm with as intelligent a jury as that was, even if it had not been corrected."
The conduct of a trial must be left largely to the discretion of the presiding Judge. One seeking a new trial because of unfair or improper argument on the part of counsel for the successful party should show these things: (1) That timely objection was interposed to the argument; (2) the substance, at least, of the objectionable language; (3) the failure of the Court to sufficiently warn the jury not to consider the improper argument; and (4) that the result was to materially prejudice the right of the losing litigant to obtain a fair and impartial trial. Many cases in our reports, not necessary to be cited, sustain these propositions. Measured by the required standards, we are unable to find reversible error in the exceptions as complained of.
The exceptions 6 to 10, inclusive, complain of error on the part of the trial Judge in not granting a new trial, on the ground that one of the jurors had, a few days previous to the trial of the case, stated to at least two other persons, in effect, that he hoped to be a juror on the appellant's case so that he could convict him. An affidavit from the two persons, to whom it was claimed that the juror had made this statement seems to have been presented to the Court, but it is not set forth in the record. We can only gather the contents of the affidavit from the argument of counsel and the remarks of the Circuit Judge in overruling the motion for a new trial. Referring to this matter, the Judge said:
"When the jury were about to be sworn, they were asked individually if they were related by blood or marriage to the prosecuting witness, Gregory, or to the defendant Meehan. Nothing further was asked of the Court. They were not asked to be put upon their voir dire.
"There is nothing in this affidavit to show that the statement now relied upon and alleged in this affidavit could not have been obtained by due diligence beforehand. It is stated in argument that it was unknown to defendant until after the trial. The list of jurors was published before Court came on, and if these two affiants here knew of this and did not inform the Solicitor and the defendant and his attorney of this, they were very direlict in their duty as citizens; and it is late in the day for them to come here now and make this statement. The State has no opportunity to reply to these affidavits; they are presented immediately with the motion, and they do not commend themselves to my consideration."
We agree with the Circuit Judge, from the little we can gather from the record in the case, that there was lack of due diligence on the part of the appellant to entitle him to a new trial on the ground that the juror was prejudiced against him. The statement from the two affiants, as to what the juror had said relative to the appellant's case, was presented to the Court within less than twenty-four hours after the jury had returned their verdict. If the appellant had been as diligent before his conviction as he was after the jury had found him guilty, he could have made the discovery as to the juror's attitude of mind, if the statements contained in the affidavits were true. Appellant not only failed, according to the record before us, to ascertain the standing and character of the jurors who were to try him before the time of trial, although he had opportunity to do so, but he did not even ask that the jurors be sworn on their voir dire, so that they might be questioned as to their interest and feelings in the case. The point raised here has been disposed of against the contention of the appellant, on account of his failure to exercise due diligence, by the case of the State v. Robertson, 54 S.C. 147, 31 S.E., 868. See, also, Blassingame v. City of Laurens, 80 S.C. 38, 61 S.E., 96; State v. Johnson, 123 S.C. 50, 115 S.E., 748.
The other exceptions, 11 to 14, inclusive, urge that there were erroneous and harmful instructions given by the presiding Judge in his charge to the jury. We have studied the charge carefully and are unable to agree with the appellant. The case is an unusual one in our State, for we have had few prosecutions for bribery or offer to bribe. The charge of the Court was a fair and clear exposition of the law involved. For the benefit of the bench and bar, we think it well to have it reported, and this will be done. In that connection, the exceptions as to the charge will also be reported, and we think the charge as a whole is a complete answer to the attacks made upon it.
We have given careful attention to the record in the case, and are unable to find any reversible error committed in the trial. If, as appellant's able counsel have so strongly argued, his motive was pure and his conduct was inspired by his desire to expose an unfaithful public official, it is certainly an unfortunate situation. But this Court is not called upon to decide the questions of fact, which were decided adversely to the appellant's defense by a jury of his own county, which he had the honor to represent in the General Assembly of this State.
The judgment below is affirmed.
MESSRS. JUSTICES COTHRAN, STABLER and CARTER concur.
MR. JUSTICE BONHAM did not participate.