State v. Addison
| Decision Date | 24 April 1871 |
| Parties | THE STATE v. GEORGE B. ADDISON. |
| Court | South Carolina Supreme Court |
There is no case pending, in a prosecution for murder, until after bill found.
By the expression, " to change the venue," in the Act of 1868, is meant to change the place of trial from one County to another.
A motion to change the place of trial, in a criminal case cannot be heard before bill found.
After bill found, it is within the discretion of the Circuit Judge whether he will hear such a motion before or after issue joined. The notice may be given before, but it is better, it seems, that the hearing of the motion should be after issue joined.
The prosecutor, in a case of homicide, is not a party interested by whom notice of a motion to change the place of trial may be given. It should be given by the Solicitor on behalf of the State.
Indictment for murder quashed on the ground that attorneys representing the Solicitor, he being absent, had entered the room of the grand jury when they were deliberating on the bill, and advised them in reference to their duty.
BEFORE PLATT, J., AT EDGEFIELD, FEBRUARY TERM, 1870.
Appeal by the State from certain orders made by the Circuit Judge in this case, which was a prosecution for murder.
Before bill found, Mr. Gary, acting for the Solicitor, who was absent, moved, on behalf of the State, that the venue be changed. This motion His Honor refused to hear, on the ground that the bill had not been found.
A true bill was afterwards found, and, thereupon, the motion was renewed, and again refused upon three grounds: (1.) That issue had not been joined, and the motion could not be heard before the prisoner had pleaded to the indictment. (2.) That the notice of the motion, required by law, had been given by the prosecutor, and not by the Solicitor of the Circuit; and (3.) That notice of the motion cannot be given until after bill found and issue joined.
It was then moved, on behalf of the prisoner, that the indictment be quashed; and that motion was granted by His Honor, for the reasons set forth in the order, which is as follows:
" It appearing to the Court that M. W. Gary, being retained to assist the State's Solicitor in the prosecution of this indictment, (and having been appointed by the Solicitor, P. L. Wiggin, who had been compelled to leave the Court, to act as Solicitor in this case, which appointment had been confirmed by the presiding Judge, said Judge being ignorant of his having been previously retained to assist in the prosecution, he having given notice to Mr Griffin, one of the counsel for defendant, that he was going before the grand jury in regard to said bill of indictment and no objection being made to his appointment as Solicitor in this case until he had gone into the grand jury room,) had entered the room of the grand jury after the bill of indictment had been delivered to them, and after they had heard, on the first day of the term, the charge of the presiding Judge, and, without the fact of his intention to go to the grand jury having been brought to the attention of the Court, or its permission obtained, had then and there instructed the jury as to their duty under the law in disposing of the bill of indictment, by reading to them extracts from two several law books; and it also appearing that, afterwards, C. W. Miller, Esq., as the Deputy of the State Solicitor, (Mr. Gary having previously retired from the grand jury room, at the instance of defendant's counsel,) entered the room of the said grand jury, at the instance of the Court, and instructed them that, if there was sufficient ground for the reasonable suspicion that the defendant was guilty of the crime charged in the indictment, then, that it was the duty of the grand jury to find a true bill in this case-on motion of Mr. Carroll, and others of counsel, on the part of defendant, ordered that the indictment in this case be quashed."
Appeals were taken by the Solicitor, on behalf of the State, as follows:
From the order refusing to hear the motion to change the venue before bill found, an appeal was taken, on the ground-
1. Because, it is respectfully submitted, that defendant having been arrested on warrant for the homicide, there was a criminal case pending in the Circuit Court for change of venue, in the trial of which the motion should have been heard, and that His Honor erred in deciding that a bill must be found before such motion could be heard.
From the order refusing to hear the motion to change the venue after bill found, an appeal was taken on the grounds:
1. Because, it is respectfully submitted, that a bill having been found against the defendant, who had been previously arrested on warrant, and admitted to bail, there was a criminal case pending, for change of venue, in the trial of which the motion should have been heard, and that His Honor erred in ruling that there was no case pending until issue was joined between the defendant and the State, by the prisoner's plea on his arraignment.
2. Because, it is respectfully submitted, that His Honor erred in ruling that the prosecutor was not a party interested by whom the notice of application for change of venue could be given, and that the notice must be given by the Solicitor of the Circuit.
3. Because, it is respectfully submitted, that His Honor erred in ruling that the notice required by the Act cannot be given properly until true bill found, and issue joined between defendant and the State.
And from the order quashing the indictment an appeal was taken, on the grounds:
1. Because being retained to assist the State Solicitor in the prosecution of an indictment does not prevent the party so retained from being deputed to act as Solicitor.
2. Because the party deputed to act as Solicitor had all the rights and powers of the Solicitor of the Circuit, and among them that of entering the grand jury room, and counselling the grand jury.
3. Because there was nothing in the conduct of counsel in the grand jury room, of either of the parties deputed to act as Solicitor, to justify the indictment being quashed.
4. Because even if there was error in the counsel given to the grand jury by either of the parties deputed to act as Solicitor, such error affords no ground for quashing the indictment.
5. Because, it is respectfully submitted, that the causes assigned in the order were insufficient to warrant the quashing the indictment, and that His Honor erred in so ordering.
Wiggin , Solicitor, for appellant:
1. That change of venue may be moved for in " all cases, civil and criminal, pending in the Circuit Courts, over which such Courts have jurisdiction." -A. A. 1868, 14 St. 84.
2. That a case is pending as soon as first proceedings are instituted, certainly when defendant is made a party.
Civil case at law pending when writ is lodged with Sheriff, certainly when defendant is served.-1 N. and McC., 569, 603; 5 Co. 61; 3 Chitty's Pl., 904.
Civil case in equity pending when bill is filed, certainly when defendant is served with subpoena.-Speer Eq., 382; 1 McCh. 264; Bail Eq., 481; 1 Strob Eq., 180; 2 Daniel's Ch. Pr., 725; Story's Eq. Pl., Sect. 737.
Criminal case pending as soon as affidavit made on which warrant issues, or warrant issued, certainly when defendant is arrested. Harper, 313; 4 Mc. 356; 1 Brev. 160; 1 East P. C., 186; 1 Den. C. C., 217; 2 C. & K., 402; Wharton's Amer Cr. Law, Sec. 449, Note R; 15 Rich. 282.
3. That if a criminal case is not pending prior to bill found, it certainly is pending, and the record so made up as to be removable to some other County for trial, after true bill found against defendant who has been arrested on warrant.-A. A. 1839, 11 St. 72; Wharton's Amer. Cr. Law, Sec. 521.
4. That the prosecutor is a party interested in a criminal case, by whom notice of application for change of venue may properly be given-the words " " some party interested," not being restricted in meaning to plaintiff or defendant.-A. A. 1868, 14 St. 85; 1 Waterman's Archbold's Cr. Pl. and Pr., 252; The People vs. Webb , 1 Hill, N. Y., 179.
5. That even if the notice was defective, in being signed by the prosecutor, instead of the Solicitor, such defect was cured at October Term, 1859, by order of the Circuit Judge, on motion of the Solicitor, that the motion for change of venue be heard at February Term, 1870.
6. That notice may be properly given of motion for change of venue before bill found and issue joined between defendant and the State, according to the words of the Act, and its proper construction.
Even were the words doubtful, the argument drawn from the inconvenience attendant upon the other construction, would be potent in favor of this construction.-Co. Litt., 66 A.; Broom's Legal Maxims, 139.
On the appeal from the order quashing the indictment, he cited: 57th Rule of Court, Miller's Comp., 42; Wharton's Amer. Cr. Law, Sec. 495; 1 Chitty's Cr. Law, 816; 4 Blackstone's Com., 126, Note by Christian; 1 Waterman's Archbold's Cr. Pl. and Pr., 323; Oath of Grand Jurors, Miller's Comp., 159; A. A. 1768, 7 St. 240, Sec. XXI; A. A. 1868, 14 St. 88; 1 Waterman's Archbold's Cr. Pl. and Pr., 99; 4 Bla. 303; 7 Rich. 339; Wharton's Amer. Cr. Law, Sects., 519, 520; Com. Dig., Indictment H.; 1 Waterman's Archbold's Cr. Pl. and Pr., 336, 338; 2 Hawk. P. C. C., 25, Sec. 146; 1 Salk. 372; 14 Rich. 280; 2 Hill 288.
Carroll & Melton , contra:
I. The motion to change the venue, before true bill found, was wholly unauthorized by the A. A., 1868, 14 Stat. 84, 85.
1. Ordinarily no man can be held to answer " for a capital felony unless on presentment of a grand jury" of the County where the crime was committed.- State Constitution Art. I, Sec. 19; 3 Camp'l; Lives of the Lord Chancellors, ch. 90,...
To continue reading
Request your trial