
    8139
    STATE v. WELDON.
    New Trial—Trial.—Where counsel appointed- by the Court to defend prisoners charged! with an atrocious murder on the way to the place of trial hears- threats among a large croiyd on the streets of lynching, and- on this account and of the overbearing attitude of the crowd in the courtroom gave up his right to ask for three days to prepare the case for trial, and1 during the trial the courtroom was so filled with people hostile to • the prisoners as actually to fill up the bar around the prisoners, counsel and jury, so that the counsel could not at times see the witnesses ■ being examined, and counsel for the prisoners could1 not see the jury until he addressed them from the crowd-, a new trial will be granted.
    Before Prince, J., Florence, October, 1911.
    Reversed.
    
      Indictment against Alex. Weldon and William Borroughs for murder. The report of special Judge George Brown, who tried the case, is :
    “The entire appeal- record1 having been1 referred to- me a-s the trial Judge ini the above stated case, by an order of the Supreme Court for a full report upon ‘all the matters alleged in the affidavits and -exceptions,’ to the end that I certify to said Court a ‘statement of all 'the conditions surrounding the trial so far -as they -are germane to the exceptions quoted’ in said1 order ‘and the matters alleged in the affidavits appearing in the reoord-,’ I beg’ leave to- ‘report’ and ‘certify’ that I went from Darlington to Florence on the day of the trial on the -car by morning train, arriving on or about schedule time, 8 :3d-or 9 o’clock a. m-., and Court convened at 10 o’clock a. m.
    “There was- a large crowd in Florence during the day and when this is stated all is stated which I know which could excite even casual interest -except that an atrocious -assassination of a worthy citizen bad -been committed and that the parties charged with' 'the -crime were there and then to be tried and the presence- of the crowd was supposedly due to¡ these facts. The presence of such a crowd under these circumstances was natural and proper and was no surprise to me. I saw very many there personally known to- me to be of the best citizenship of the county and of its most law abiding and patriotic personnel. Why that -crowd is denominated a mob I do not know. It certainly manifested no mob spirit to my eye or within my hearing. It was just simply a crowd and quite a crowd for Florence court room and that is all that can1 be said about it except ‘that it was the best bebav-ed crowd! I ever saw,’ and I am here quoting in effect my own words when defendants’ motion for a new trial- was overruled. It did crowd within the bar, of which fact I was- not unobservant, but to say that it was ini possession of the courthouse and 'held the same during the trial is a gross mis-coni-oeption of the conditions as I saw them. I had a right to assume and did assume that the presence of that crowd was for a lawful purpose not only consistent with the best citizenship, but composed, as it was, in support of law and order. It was certainly wholly lacking in any element of a riotous assemblage and in no respect was it disorderly; and in this regard, as I am expected to make ‘a full report,’ it is proper that I should particularize by saying that I saw no evidence of drunkenness ('or even evidence of drinking) in' the crowd and it was in all respects quiet and well behaved. An individual instance of boisterousoess or bad conduct did not come within my observation during ‘the term’. In every instance when I observed that it was becoming too much crowded within the bar or my attention was called to such conditions my admonitions received the most respectful consideration and obedience, and there was never any crowding within the bar that in any way interfered with the orderly dispatch of the business’ of the 'Court or with the rights- of counsel or the accused.
    “If the jury was overawed, intimidated or put in fear I am at a loss to know what did it. No member of the jury made any complaint before, during or since the trial- to- me; the sheriff was there and he likewise made no complaint. I went to and from the courthouse unattended and I have yet to see or hear of any threats or overawing condition®. There was no military in attendance and none suggested, though there is an excellent company in Florence, one in Darlington 'and another in Timmoneville, each only ten miles distant.
    “Counsel for defense did not request 'the three day® and copy of the indictment to which he was entitled on demand, and such demand1 would most certainly have been granted without any apprehension of danger to counsel or defendants'. If there was anything improper or irregular in this trial I do not know it, and as long as the statute stands for the speedy trial- of criminal offenses at special 'terms, I doubt if there will ever be in this State a more quiet and less sensational trial.
    “Defendants were ably defended, and the result of the trial is- due to the weight which the jury g-ave to the 'testimony, which is their exclusive -province.”
    The following affidavits were submitted -by the appellants:
    “Personally appeared W. E. Clayton, who, being sworn, says that 'he was preparing to go to the King's tree Court, which was then ini session, he having several equity cases before that court, when J. A. Muldrow, clerk of the court for Florence county, then assembled as a special Court to try Alex. Weldon and William Burroughs and under a separate indictment one Ham for the murder of El-ihu Moye, informed- deponent that the special Judge wanted to see him'; d-ep’onent went to the Court and the special Judge informed him that he wanted an experienced lawyer to defend) Alex. Weldon and William Burroughs, they having no counsel; that deponent stated he would defend them; that when) deponent entered into the court room he found a crowd occupying every available space in the court rootai; that- on -the -streets was 'an unusual crowd for that city; that he heard -expressions1 in regard to lynching of the parties accused of the killing of Moye; that when he entered the court room it- was -all he could do' to push his way through the crowd. Every seat was taken up, the isles were full, and the bar reserved for the lawyers' was full. That under conditions- surrounding, deponent did not dar-e to ask for his three days a© by law he was entitled to, believing as1 he did, that then and- there his clients would have 'been murdered; deponent 'knew nothing of his defense, but went into it, without knowledge and under the testimony, as the only testimony against them was the testimony of Ham'. That after the testimony was taken and lie had made his-argument, deponent left the court room1, overcome by the fumes of the crowd, but asked the Judge- to protect the rights of the accused, which he promised to do. That during the trial of the case deponent did not ,see the jury until he addressed them, from the crowd intervening; that on several occasions deponent requested the Judge to compel the sheriff to clear away the -crowd that he might see the witness whom lie was. examining. That deponent left the courthouse after he 'had made bis argument. That while at supper at his home deponent was- informed that the jury had brought in' a verdict of guil'ty as to his clients. That deponent immediately repaired to the Court and with difficulty forced an entrance from the crowd, and found the -Judge about to pass sentence. That deponent immediately moved for a new trial’, which was argued and overruled, and a? deponent left the courthouse he heard several voices say, it is a good thing a new trial was not granted, as- if said new trial had been1 granted the prisoners would not have got back to jail alive. W. F. Clayton.”
    Sworn to.
    “Personally appeared Pucien W. McPemore, who, being sworn, says that on the evening after the jury rendered a verdict of conviction in the case of the State against Alex. Weldon and William Burroughs' and on the morning following deponent heard on the streets- of Florence repeatedly that if W. F. 'Clayton, Esq., hadisecured a verdict of acquittal for these defendants both the negroes and their attorney would have been lynched.
    Sworn to. PuciLN W. McPlmorL.”
    “Personally appeared R. Pee Brunson, who, being sworn, says: That the day the defendants were tried in Florence, there was an immense crowd on the streets; that he went to the courthouse, and found the same full, bar, passage, and every available space; that 'he obtained a position1 on a barrel just behind the Judge’s- seat overlooking him; that be distinctly recollects- hearing' Mr. Clayton, who was conducting the defense, request the Judge to order the sheriff to clear away 'the crowd so that he could see the witness whom he was examining, or words :to that effect; that never in his experience has he seen such a crowd in the courthouse.
    'Sworn to. R. Dee Brunson.”
    “Personally appeared D. Gordon Baker, who, being sworn, says1: An atrocious, murder bad-been perpetrated in Florence county, a worthy citizen had been1 shot down in his own 'house, excitement was intense, a special term of Court was ordered, an immense crowd came to Florence, oo the day of the trial; that on the day of the trial as an1 attorney practicing before the Court, he went to the rear entrance; to the bar reserved for the lawyers', staid there only a short time as1 the crowd was so dense and the respiration; bad, and left believing that the jury was overawed by the crowd.
    D. Gordon Baker.”
    The letter of F. F. Covington, stenographer 12th Circuit, who, being in Court, stated that he wished it considered that this letter was sworn to, is:
    “Marion, S. C„ April 17, 1911.
    “W. F. Clayton, Florence, S. C. Dear Mr. Clayton1:
    “Thanks for brief and points and authorities in Weldon and Burroughs case; I hope you -will win out; you have made a strong showing. If the Supreme Court could have witnessed that trial 'as you and I saw it, I don’t think they could fail to find a reason for granting a new trial. True that crowd that packed the court room was smiling and good matured, -but it was because things' were going their way. There was' blood lust in their hearts', 'and if there had been a bitch in' the proceedings' which indicated that they would be balked of their prey, the demon of the mob would have uttered a howl that would have been heard all over the State, and two lifeless bodies, and it may be more, would have been borne out of that court room.
    Yours very truly, F. F. Covington.”
    From motion refusing new trial defendants appeal.
    
      
      Messrs. W. P. Clayton and Willcox & Willcox, for appellants.
    
      Solicitor Walter PI. Wells, contra.
    March 16, 1912.
   The opinion of the Court was- delivered by

Mr. Justice Woods.

The appellants, Alexander Weldon and William' Burroughs, were convicted of the murder of Elihu M-oye, and are under sentence of 'death. By a former appeal, the defendants sought a new trial' in this Count on the ground that they had not had a fair trial, without having made a motion in the Court of General Sessions on that ground; hut the appeal was dismissed as premature, without prejudice to the right of the defendants- fo move for a mew trial in the- Circuit Count. The -orders of thisi Court and the disposition of the- appeal appear in 88 S. C. 555, and 89 S. C. 308.

After the dismissal -of the former -appeal a motion was made in the Court of General Session® for a new trial' -on the grounds, first, that the defendants had 'discovered evidence in their favor -after their trial which they should be allowed to offer, and second, that the trial’ was not fair and impartial. The motion was refused, and this appeal brings up for review both questions made in the Court below.

The affidavits 'as to the after discovered evidence fall short of making out a defense so clear and convincing as to warrant this Court in holding that the Circuit Judge abused his discretion in not granting a new trial on the first ground.

The second ground -of appeal—the averment that the defendants have been convicted and sentenced to1 death without a fair and impartial trial—brings up for decision- an issue of vital concern to every citizen of the State. By our Constitution the people have set the law above themselves, except as they choose to change1 it by the methods which they themselves ’have ordained; and they have laid upon the Courts the duty of enforcing their promise that the weak as well as the strong shall be condemned only after a fair trial according to law before an impartial jury. In the faithful performance of their promise by the people, and' in the discharge of their duty by the Courts, is involved not only the public honor, but public safety, prosperity, and happiness; for in the long run neither individual nor 'community success is possible unless men feel that they will not lose life nor liberty nor property without a fair and impartial trial under the law of the land. Therefore the complaint of the defendants that a large and hostile crowd of persons so interfered with the trial that it was not a fair 'trial, concerns mot only the defendants, 'but all the people.

Ideal conditions it is true are not to' be expected, and verdicts should not be set aside by an' appellate court for misconduct in a trial, unless the evidence is clear and convincing that extraneous influences' so interfered with the conduct of the trial, or so pressed upon) tíre jury, as to became factors in the result. A vast number of cases might be cited to show that this Court will refuse to' heed unsubstantial charges that trials have not been fair. Yet in all the course o f 'the development of the administration of law in England and America there has never been a doubt of the rule laid down in 1819 in the case of the King v. Hunt et al., 2 Chitty 130, when the Court said it, is of the greatest importance that the administration of justice should be free, not only from spot or blame, but that it should be, as far as human! infirmity could allow it to become, as free from all suspicion.

The special Judge, Hon. George W. Brown, who presided at the trial has certified that according to the facts as they appeared to him the rights of the defendant were safeguarded and the trial properly conducted. His opinion' and that of Judge Prince, who denied the motion for a new trial, are 'entitled to great consideration; for their ability and their solicitude that the defendants should have a fair trial cannot be doubted. In passing upon the correctness of their conclusion® of law every statement of fact madfe by the trial Judge will be taken as- true; and1 the evidence offered' on behalf of the defendants will be taken as true only in so far as it is consistent with the statement of fact found in1 the report of the trial Judge.

Looking at the case in this way we find these to be the material facts': An atrocious murder of a worthy citizen had properly aroused the interest- and indignation' of the entire community. One -of the persons suspected had confessed, and implicated as active participants in the crime the -two defendants. Very soon after the m-urder a special term of Court had 'been ordered to try both the confessed- -murderer andi these defendants. An immense -number of peo^ pie assembled at the trial intensely hostile 'to the accused, and crowded the courthouse. The defendants being without counsel, the presiding Judge s-enit for Mr. W. F. Clayton and requested him to undertake their defense. On bis way to the Court through the dense crowd Mr. Clayt-oo “heard expressions in regard to, lynching,” which convinced him that if he should ask for the three days1 of preparation allowed by law, the prisoners would be lynched, and' under the compulsion of this- fear be gave up that most vital right, and went immediately into the trial without preparation. That the danger of mob violence was- present and imminent is made further manifest by the -statements of Mr. Luden W. M'cLemore and the stenographer of the Court, Mr. F. F. Covington, both- witnesses of high- character. Not a particle of evidence was offered by the State to1 controvert this showing. The presiding Judge, it is true, says that the crowd was quiet, and -that it manifested no mob spirit to hi's eye nor in his hearing, but this statement does not impair the force of the testimony of those who' mingled with the people and thus had better opportunity to observe. Thus it appears, beyond all doubt, that the drctimistancas- of the trial were such, that counsel of experience and courage gave up under the most urgent compulsion the right to three days of preparation guaranteed to tine accused 'by the larw, and that, too, when 'he had been called into the case by the Court without previous notice.

Compulsion is sufficient to annul a will or a contract for the sale of property. How them can it be held that a trial involving life or death was fair 'amid impartial according to the law of the land when, the accused, under the compulsion of a reasonable apprehension of lawless violence, surrenders a right vital to1 his defense?

In an opinion delivered by the distinguished Judge Elliott, the Supreme Court of Indiana under circumstances very similar to those appearing here set aside for compulsion a plea of guilty, which defendant’s counsel showed to the Court had been entered by their advice on the reasonable apprehension that if their client should be acquitted- he would •be lynched. Sanders v. State, 86 Ind. 318, 44 Am. Rep. 29.

It is argued, however, that counsel should have sought the protection of the Court. No doubt, -that course would have-been the most judicious, but, in view of -the surroundings', and especially in view of the fact that the Judge’s seat was itself pressed upon by the -crowd, it would be an unjust judgment to hold 'that the accused' lost a vital right by the failure of their counsel to do the most judicious thing in the sudden emergency which he -was called on by the Court to meet.

■Consideration of the further proceedings' deepens the conviction that the 'trial was not fair. With respect to' the charge that the space within the bar immediately around the Judge, the jury, and the witnesses1 was -so taken by the great crowd, that the trial' could not proceed with decorum and fairness, the presiding Judge says that it was the best behaved- crowd he ever saw and that there was, nothing to indicate to him a sign of -a .riotous spirit, that i't did crowd' within tlie bar, but that it was not in possession of the courthouse. He says further: “In every instance when I observed, that it was becoming too much' crowded! within' the bar or my attention! was called to* such condition® my adtaoimtions received the moist respectful consideration and obedience; and there was never any crowding within the bar that in anyway interfered with the orderly dispatch of the business of the Gourt or with the rights of thte counsel of the accused.” -The affidavit of Mr. Claytoo contains the following statement: “That during the trial of the case dteponenlt did not see the jury until be addressed them from the crowd intervening, that on several- occasion's deponent requested the Judge to compel the sheriff to clear away the crowd that he might see the witness whom he was examining.” There is no statement of fact made by the presiding Judge inconsistent with the statement of Mr. Clayton. It thus -appears that a large number of persons hostile to defendants were allowed so to press upon the Court that counsel for the defense had to ask several times that they be cleared away so that he could see the witness under examination, and so to press around the jury that counsel could mot see them until 'he stood before them to argue the case. We are unable to assent to the opinion of the presiding Judge that' such a state of affairs did not interfere with the orderly conduct of the business of the Court or with the rights of the accused. Trials must be public, but the right of the accused to a fair trial is superior to' the right of the public to witness the trial. In all trials- not only the dignity and decorum which should characterize the administration of justice, but the preservation of the rights of the people and of the parties to the cause, require that the public Should be kept away from the witnesses and the jury- and the counsel, to the end that the issue may be tried and- decided without interference or extraneous influence. In this case the public was not so kept away. Oni the contrary, a large number of persons1 justly indignant ait an atrocious murder, and undeniably hostile to the accused, pressed upon the Court, the jury, and' the witnesses..

Clearing away the hostile crowd from time to time did1 not meet the case. Fairness required that at least the space between the accused and their counsel, the jury, and the witnesses should have been kept free from intrusion. Courts cannot control public sentiment, but their commission from the people is to keep the inviolable precincts of the prisoner’s dock, the counsel’s place, the witness chair, the jury’s seats, and the intervening space free from either hostile or friendly invasion or intrusion, lest the accused be terrified or his counsel confused in making his defense, lest the witness testify falsely under fear of inducement, lest the jury be overawed, or their minds influenced by an atmosphere surcharged with hostility or partiality. The intrusion into these inviolable precincts of a large number of persons, part of a vast assemblage hostile to the prisoners, was- calculated to terrify the defendants', to confuse their counsel, to intimidate the witnesses-, and to overawe the jury. This., with the fact that counsel gave up the right of the accused to. have three days to prepare for their trial under the compulsion of á reasonable apprehension that the assertion of the right would result in their death by lynching, compels the conclusion that the defendants- did not have a fair and impartial trial.

Applying the law more specifically, we- reach -these -conclusions : The conditions! under which counsel- conducted -the defendants’ cause, and under which their witnesses were examined substantially interfered with the due -exercise of the right granted ‘by section 49 of the Criminal Code, “that the accused shall, at his trial, be allowed to be heard- by counsel, may defend -himself, and shall have a -right to produce witnesses and proofs in his favor, .and to meet the witnesses produced against 'him. face to face.”

The' jury was not so safeguarded against extraneous influences a:s to allow the defendants the right of -trial by an impartial jury, guaranteed by section 18, article I of the Constitution; and the defendants were, by the compulsion of the fear of death by lynching, deprived of the right to- have three days to prepare for their trial, conferred on them by section 40 of the Criminal Code.

Under varying facts- other -Courts- have with practical unanimity Held that verdicts- should not be allowed to stand where action by those in attendance on a trial was calculated to overawe or influence the jury, -or substantially interfere with the rights vital to the parties. Hamilton v. State (Tex.), 37 S. W. 431; Westfolk v. State (Ga.), 8. S. E. 724; Raines v. State (Miss.), 33 Sou. 19; Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; People v. McMahan (Ill.), 91 N. E. 104; Doyle v. Commonwealth (Va.), 40 S. E. 925; State v. Wilcox (N. C.), 42 S. E. 536; Robinson v. State (Ga.), 65 S. E. 792.

The judgment of this Court is that the judgment -of the Circuit Court be reversed, -and- the cause remanded f-o-r a- new trial.

Messrs. Chiee Justice Gary and Justice Hydrick clone participate in this opinion and concur.  