¶1 The opinion of the Court was- delivered by
¶2 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.
¶3 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.
¶4 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.
¶5 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 *36 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.
¶6 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.
¶7 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 *37 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.
¶8 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 *38 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.
¶9 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?
¶10 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.
¶11 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.
¶12 ■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 court *39 house. 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 *40 undeniably hostile to the accused, pressed upon the Court, the jury, and' the witnesses..
¶13 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.
¶14 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.”
¶15 The' jury was not so safeguarded against extraneous influences a:s to allow the defendants the right of -trial by an *41 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.
¶16 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.
¶17 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.