53 S.E. 286 (S.C. 1906), State v. Simmons

Citation:53 S.E. 286, 73 S.C. 234
Opinion Judge:GARY, A. J.
Party Name:STATE v. SIMMONS et al.
Attorney:W. J. Fishburne and C. C. Tracy, for appellants. Solicitor Davis, for the State.
Case Date:February 15, 1906
Court:Supreme Court of South Carolina
 
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Page 286

53 S.E. 286 (S.C. 1906)

73 S.C. 234

STATE

v.

SIMMONS et al.

Supreme Court of South Carolina

February 15, 1906

Appeal from Common Pleas Circuit Court of Colleton County; Klugh, Judge.

Sarah Simmons and others were convicted of larceny, and appeal. Affirmed.

W. J. Fishburne and C. C. Tracy, for appellants. Solicitor Davis, for the State.

GARY, A. J.

The defendants were indicted for larceny of live stock, and were convicted upon their second trial. When they were first put upon trial, one of the jurors died after his honor, the presiding judge, had commenced his charge. The defendants' attorneys refused to consent to proceed with the trial, whereupon the circuit judge discharged the jury and ordered a mistrial.

1. The first exception, which raised the question of former jeopardy, has been abandoned.

The second and third exceptions are as follows: "(2) Because his honor erred in refusing to grant a new trial on the ground that a conspiracy had been shown in the testimony for the state as existing between the witness H. T. Spell and the prosecutor to urge the defendants to commit the crime alleged. (3) Because his honor erred in not holding and deciding that such conspiracy, if proven, was good ground for granting a new trial." The record recites that after the verdict of the jury, motion was made by defendants' counsel for a new trial and for arrest of judgment, which was refused, but the grounds of the motion are not set out in the record. The questions presented by these exceptions are, therefore, not properly before this court for consideration.

2. The fourth exception is as follows: "(4) Because it is respectfully submitted that there is error in the charge of the presiding judge in this, viz.: 'The Legislature found it...

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