State v. Ameker

• Citation: 73 s. c. 330,53 S.E. 484
• Parties: STATE. v. AMEKER.
• Decision Date: 26 February 1906
• Court: United States State Supreme Court of South Carolina

53 S.E. 484
(73 s. c. 330)

STATE.
v.
AMEKER.

Supreme Court of South Carolina.

Feb. 26, 1906.

1. Conspiracy—Definition.

An instruction on trial for conspiracy that "conspiracy" is an agreement by two persons to do an unlawful act or to do a lawful act by unlawful means, and it is the agreement to do the unlawful act that is the gist of the whole matter, and that if the defendants went to the place named and agreed to do the acts alleged they would be guilty of conspiracy, or if two or more of them went there and committed the acts alleged by virtue of an agreement so to do, then they would be guilty of conspiracy, properly described the offense.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Conspiracy, §§ 30-39.]

2. Indictment—Surplusage.

Any words not absolutely necessary to an indictment will be treated as immaterial and need not be stricken out.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Indictment and Information, §§ 311, 312.]

3. Conspiracy—Common-Law Offense.

Cr. Code 1902, § 233, providing for punishment of conspiracy does not abrogate the law of conspiracy in the state.

Appeal from General Sessions Circuit Court of Orangeburg County; Dantzler, Judge.

Abe Ameker and others were convicted of conspiracy, and appeal. Affirmed.

The judge charged the jury: "Mr. Foreman and Gentlemen of the Jury: The law gives the right to a defendant to take the stand or not, in the trial of any case, that is, he may or may not testify, and the jury, by virtue of that fact, Is not to be prejudiced against such a defendant. The failure of a defendant or defendants to testify should not operate against them, or either of them, In any way. Now, it is incumbent on the state to prove each and every charge of the indictment beyond a reasonable doubt; that does not mean a fanciful or imaginary doubt, but it must be a reasonable doubt It is incumbent on the state, I say, to prove every charge against any defendant beyond such a doubt. These defendants, Mr. Foreman and gentlemen, are charged under the indictment with conspiracy, and conspiracy, Mr. Foreman and gentlemen of the jury, is an agreement by two or more persons to do an unlawful act, or to do a lawful act by unlawful means. For instance, suppose, Mr. Foreman, that you and the gentleman on your left would go out on the streets of Orangeburg and commit an assault and battery on some other person, that would be an unlawful act, but it would not be a conspiracy, unless there was an agreement between you to do the act before doing it. It is an agreement to do an unlawful act that is the gist of the whole matter. Now, Mr. Foreman and gentlemen, you are to find the facts from the testimony brought out on the witness stand, and apply the law to the facts, giving the defendants the benefit of every reasonable doubt. If you find that these parties went to the place named and agreed to do the act or acts as alleged, they are guilty of conspiracy; or if you find that two or more of them went there and committed the acts alleged by virtue of an agreement so to do, then they are guilty of conspiracy. Now, where there is only one person concerned, there can be no conspiracy, because one person cannot make an agreement with himself. Therefore, if you find a verdict, you can find all guilty or all not guilty, or you can find two or more guilty, specifying which ones. Find your verdict from the testimony in the case, giving the defendants the benefit of every reasonable doubt. Take the record, gentlemen, and find your verdict. Mr. Foreman and gentlemen, a certain person named B. Lee Jeffcoat was mentioned in the indictment, but the case against him has been nolle prossed, so there is no case against B. Lee Jeffcoat."

W. H. Sharpe, Wolfe & Berry, and Jas. F. Izlar, for appellants.

P. F. Hildebrand, for the State.

POPE, C. J. The defendants were tried under the following indictment: "The jurors of and for the county aforesaid, in the state aforesaid, upon their oath, present, that Abe Ameker, B. Lee Jeffcoat, J. B. Ameker, Cleveland Hooker, William Jamison, James Mc-Leod, late of the county aforesaid, on the twenty-second day of April, in the year of our Lord one thousand and nine hundred and five, with force and arms, at Orangeburg, in the county and state aforesaid, then and there unlawfully, feloniously, and willfully conspired together, and banded themselves together at a certain public place in the county and state aforesaid, to wit, at Laurel Bay, for the purpose of hindering, preventing, and obstructing certain citizens of the United States and of this state of and from

[53 S.E. 485]

the free exercise of their rights and privileges, accorded them under the laws of the United States and the laws of this state, by then and there obstructing, hindering, and preventing, L. P. Wisenhunt, T. A. Salley, E. J. Salley, Robert Salley, R. J. Salley, Charlie Hall, S. B. Hall, M. S. Williams, Mike Fanning, Arthur Robinson, Dan Davis, Mrs. Tom Salley, Mrs. R. E. Fanning, Mrs. S. B. Hall, Mrs. G. S. Davis, Willis Williams and divers other persons to the jurors aforesaid unknown, who, being then and there assembled for the purpose of engaging in social intercourse and peaceable pastimes, such as are commonly enjoyed at picnics, and were so engaged; they, the said Abe Ameker, B. Lee Jeffcoat, J. B. Ameker, Cleveland Hooker, William Jamison and James McLeod, in pursuance of the said conspiracy, then and there unlawfully, violently, riotously, tumultuously, with pistols and other weapons, and threats, routing and putting to flight the said L. P. Wisenhunt, T. A. Salley, E. J. Salley, Robert Salley, R. J. Salley, Charlie Hall, S. B. Hall, M. S. Williams, Mike Fanning, Arthur Robinson, Dan Davis, Mrs. Tom Salley, Mrs. R. E. Fanning, Mrs. S. B. Hall, Mrs. G. S. Davis, Willis Williams and divers other persons to the jurors aforesaid unknown, against the form of the statute in such cases made and provided, and against the peace and dignity of the state." After the introduction of testimony for the state and the charge of his honor, Judge C. C. Dantzler, the jury found the verdict of guilty, and the defendants, Abe Ameker, J. B. Ameker and Cleveland Hooker, were each sentenced to be imprisoned in the county jail of Orangeburg county at hard labor upon the public works of said county, for the term of two years, or be confined in the State Penitentiary at hard labor for a like period. The two defendants, William Williamson and James McLeod, were each sentenced to be imprisoned in the county jail of Orangeburg county at hard labor upon the public works of said county for a period of 18 months, or be confined in the State Penitentiary at hard labor for a like period.

From this judgment the defendants appealed to this court upon the following grounds: "(1) Because his honor erred, in holding that notwithstanding there was no statute making the offense...