
    The State vs. Wesley Whitman.
    
      Practice — Excusing Juror — Polling Jury — New Trial.
    
    Whether a juror shall be excused is a matter of discretion with the Circuit Judge, and from the time he is excused he ceases to be a juror, and cannot be recalled.
    Excusing a juror should always be done publicly in open Court. The time when and the reason why should be put in writing and left with the Clerk,i and the fact should be entered on the minutes.
    Whether, in a capital case, the prisoner shall be allowed to have the jury polled, is a matter of discretion with the Circuit Judge.
    Where the guilt of the prisoner is clear, it is no ground for a new trial that no motive to the commission of the act, a premeditated murder, appears.
    BEFOBE ALDBICH, J., AT NEWBEBBT, FALL TEBML, 1866.
    The prisoner was arraigned on Tuesday, October 16th, 1866, and put upon his trial the next day, on an indictment for the murder of Lewis Cureton, freedman.
    On the first day of the term certain of the petit jurors had been excused by the presiding Judge, and the prisoner in exercising his right of challenge, haying exhausted the panel, moved that the excused jurors be sent for. This was refused. One of the excused jurors was called as a talesman, and objected to by the prisoner. This exhausted his challenges, and the jury was made up by swearing the next talesman.
    The evidence was that the prisoner, who had resided in the neighborhood but a short time, lived in Edgefield District, at the house of one Polly Berry, whose daughter he had recently married. This was across the Saluda river, and about seven miles from the residence of the deceased.
    On Wednesday, the 1st August, 1866, a white man, a stranger to all the witnesses to the fact, came to the residence 'of the deceased about ten o’clock in the morning, and asked, for water. This was handed to him, and, having drank it, he requested the deceased to walk off with hiip. The deceased complied with his request, and they had proceeded but a few paces when the prisoner shot the deceased in his back with a pistol, killing him almost instantly. Witnesses who knew the prisoner testified that they had seen him that morning going in the direction of Cureton’s, and those who were present when the murderwas committed all swore that he was the man who did the deed. According to the evidence for the prosecution, the prisoner and the deceased were entire strangers; the former had, that morning, walked rapidly a distance of about seven miles, as if for the purpose of committing the act, crossed’ a river on the way, and then had deliberately shot and killed the deceased without any apparent motive.
    Polly Berry testified that the prisoner was at home, at her residence, on the morning and at the time the murder was committed.
    “In presenting the caseto the jury,” says the presiding Judge, in his report, “ I arranged the testimony so as to fully present the facts both for and against the prisoner, and left it to the jury to decide. They found him guilty. When a poll of the jury was demanded, I asked for a reason, which the counsel declined to give. The verdict was received and the formula as laid down in Miller strictly adhered to. I ruled, that unless it appeared to the Court there was some irregularity, or some reason to induce the Court to suppose the verdict was not the unanimous verdict of the jury, I would not impeach it, by ordering, the jury to be polled.”
    The prisoner appealed, and now moved this Court for a new trial, on the grounds:
    1. Because when the prisoner had run through the list of jurors present without having exhausted the challenges to wbicb by law he was entitled, bis motion to have excused jurors called, to ascertain tbe possibility and propriety of their attendance, witb a view to bave them presented to tbe defendant for bis acceptance or rejection, should bave been granted.
    2. Because tbe evidence was conflicting, and. that for tbe prosecution being of such a character as to create reasonable doubt and uncertainty, was insufficient to sustain tbe verdict of guilty.
    3. Because the defendant demanded a poll of the jury when tbe verdict of guilty was rendered, and was refused unless be could show “ some reason” to sustain tbe demand.
    
      Baxter, for appellant.
    
      Fair, solicitor, contra.
   Tbe opinion of tbe Court was delivered by

Wardlaw, J.

There must necessarily be somewhere a power to excuse jurors. It has been long exercised by the Judge presiding on the circuit, and bis discretion in the exercise of it could not be beneficially controlled. When a juror has been excused, be is no longer in attendance as a juror; bis name should not appear in a copy of the panel, and be must be treated as though be bad never been drawn. Any surprise to those who desire to exercise witb care the right of peremptory challenge may be guarded against by inquiries concerning excuses, and attention to those who answer when the panel is called over before a trial commences. We bave no information concerning the particular excuses wbicb were admitted in this case, and no doubt that the discretion of the Judge was judiciously exercised; but we avail ourselves of the occasion to suggest the importance of uniform practice on this and some other subjects of discretion amongst the various Circuit Judges. Some written memorial of the fact that a juror is excused, the time when, and the general reason why, should always be left with the Clerk: ordinarily no more expedient form can be adopted than the Judge’s requiring an affidavit of the excuse, and writing thereon his order excusing the juror, with the date. Whatever is done should be done publicly in open Court; and upon the minutes of the Court should appear the fact that a particular juror was excused, entered at the proper time. In this case, it may well have been that the reason upon which a juror was excused Monday, was no longer operative when the same person was drawn as one of the tales Wednesday. The other excused juror was as much beyond the prisoner’s reach as any other man in the tales-box whose name had never been drawn.

In the case of The State vs. Wise & Johnson, 7 Rich, 412, the right of a defendant, in a capital case, to demand the polling of the jury was denied after full argument, and to that decision we adhere. The point with reference to a misdemeanor was settled in the same way so early as 1822, in the case of The State vs. Allen, 1 McC. 525. The subsequent case of The State vs. Harden, 1 Bail. 3, did no more than declare that where want of unanimity amongst the jurors was ascertained by polling or otherwise, the verdict was null. The Court must be satisfied that the verdict has the assent of all twelve jurors, and in its discretion may direct polling, but the regular form practised in cases of felony and pursued in this case —“This is your verdict: so say ye all” — if due solemnity be observed, and that is rarely if ever wanting in capital cases, makes it inexpedient that those who, by silence, have declared acquiescence, should be subjected to a proceeding which would be torturing to the timid, and might give occasion for abuses by overawing arts or disorder.

A patient hearing and careful examination have been given to the case of the defendant. The Court is constrained to express its entire concurrence witb the opinion which the jury have declared by its verdict. The motive of the defendant does not appear from the evidence, but bis guilt of the premeditated murder of the victim of bis violence is so manifest that we are left to conjecture sucb motive as might induce bim to the commission of the atrocious act.

The motion is dismissed.

Dunkin, C. J., and Inglis, A. J., concurred.

Motion dismissed.  