State v. Edwards

• Decision Date: 26 March 1904
• Citation: 68 S.C. 318,47 S.E. 395
• Parties: STATE . v. EDWARDS.
• Court: South Carolina Supreme Court

47 S.E. 395
68 S.C. 318

STATE .
v.
EDWARDS.

Supreme Court of South Carolina.

March 26, 1904.

CRIMINAL LAW—INDICTMENT—DEMURRER—MOTION TO QUASH—MOTION IN ARREST-INSTRUCTIONS—HOMICIDE.

1. An objection to the act of a solicitor in nol prossing a count in an indictment for murder, charging defendant with carrying concealed weapons, cannot be first raised on motion in arrest, but must be taken advantage of by demurrer or motion to quash, under Cr. Code, § 57.

2. Defendant does not waive his right to raise the question on motion in arrest, that the indictment was found by a grand jury illegally drawn, by pleading to the indictment and going to trial.

3. On trial for murder, where no issue was raised as to the right of a person to interfere when he sees a felony about to be committed, a charge on such right, if erroneous, is harmless as to defendant

Appeal from General Sessions Circuit Court of Greenville County; Danteer, Judge.

James D. Edwards was convicted of murder, and appeals. Reversed.

Oothran, Dean & Oothran, for appellant.

Julius E. Boggs, for the State.

JONES, J. The defendant, under an indictment for the murder of Frank Neeley, was found guilty, with recommendation to mercy, and was sentenced to life imprisonment in the penitentiary, from which he now appeals.

[47 S.E. 396]

The first, second, and third exceptions allege error in overruling motion in arrest of judgment. This motion was based upon the grounds (1) tbat the jury law under which the grand jury, which found a true bill, was organized, is unconstitutional, null, and void, and that the defendant has therefore been convicted under a void indictment; (2) that the indictment, when it was handed to the jury, did not contain a count for carrying concealed weapons, as required by the Criminal Code. Judge Dantzer, who tried the case, refused the motion upon the ground that the same had not been made before the jury were charged with the trial of the case. It appears that the appellant was represented on said trial by counsel, but no objection was made to the indictment before trial or return of verdict.

We will first briefly notice the second objection above, which is the foundation of the third exception. An examination of the indictment, a copy of which is set out in the "case, " shows that it did contain a special count for carrying concealed weapons, in conformity with section 131, Cr. Code, which provides: "In every indictment for murder * * * and In every case where a crime is charged to have been committed with a deadly weapon of the character specified in section 130, there shall be a special count in said indictment for carrying concealed weapons, and the jury shall he required to find a verdict on such special count." After the finding of a true bill on said indictment, the solicitor withdrew or nol. pross'd the charge of carrying concealed weapons. Whether the solicitor has the right to withdraw such special count, when he finds that it cannot be sustained, is not involved in this appeal. If the striking out of such special count rendered the indictment defective, as not in accordance with section 131, it was a defect apparent on the face of the indictment, and cannot be raised for the first time on motion in arrest of judgment. Section 57, Cr. Code, provides that "every objection to any indictment for any defect apparent on the face thereof shall be taken by demurrer or on motion to quash such indictment before the jury shall be sworn in and not afterwards."

The other objection is more serious. The "case" shows that during the month of January, 1901, the names of persons to serve as grand and petit jurors for that year were selected and put in the jury box, under act approved February 19, 1900, entitled "An act to amend sections 2236, 2237 of the General Statutes, relating to the drawing and term of service of jurors in the circuit courts of this state, and to validate the jury lists already prepared, " and that, in accordance with the provisions thereof, the names of the required number...