JONES
J.
The
appellant, William J. Assmann, having been clerk of the court
for Lexington county, was succeeded in office, December 8
1891, by Isaiah Haltiwanger. While Assmann was clerk he
received in his official capacity $1,926.45 in the case of Ex
parte Fort, Administratrix, In re Boyd v. Lee, which was not
turned over to his term of office and the qualification of
his successor. For this default he was indicted under section
304, Cr. St., and was tried at the court of general sessions
for Lexington county, September term, 1895, before his honor
Judge I. D. Witherspoon and a jury, convicted, and sentenced
to pay a fine of $1,000 and imprisonment in the county jail
for three months. The defendant appeals, and alleges that the
trial judge erred in refusing to quash the indictment, in his
rulings as to evidence, in his charge, and in his refusals to
charge as follows: "First. That his honor erred in
refusing to quash the indictment (1) because it does not
state that the offense charged was committed in Lexington
county; (2) because it does not allege that the money charged
not to have been turned over was ever received by the
defendant; (3) because it does not charge that defendant
neglected or refused to turn over moneys in his hand to his
successors in office; (4) because it charges defendant with
not turning over to his successor moneys remaining in his
hand of one certain estate, named, whereas indictment lies
only for not turning over all the moneys remaining in his
hands as clerk. Second. That his honor erred in refusing to
permit the defendant, when a witness, to testify (1) Whether
or not there were other moneys with which he was chargeable
as clerk of court that he did not turn over to his successor
within thirty days after such successor had qualified; (2)
what defendant's credit was in the Carolina National Bank
at the time that he collected money as clerk of court; (3)
with what intent defendant expended moneys which were in his
hands as clerk; (4) what amount of property defendant then
owned. Third. That his honor erred in not charging the jury,
as requested: (1) That the provision of the criminal law
under which this indictment has been brought requires a clerk
of court, on the qualification of his successor, to surrender
all the property of his office, other than the money in hand,
and within thirty days thereafter to turn over all the moneys
remaining in his hands as clerk, to such successor. But this
statute applies only to property and money actually in hand,
but were not, because previously spent or disposed of by him.
(2) The jury cannot convict the defendant under this
indictment if they believe that this failure to turn over all
the moneys for which he was then responsible as clerk was
because it was out of his power to do so. (3) That if the
jury find that there is no evidence in the case that
Haltiwanger, as clerk of court, and successor in office to
Assmann
as clerk of court, made a demand on said Assmann for the
moneys remaining in his hands as clerk in the case named in
the indictment, that then the jury cannot convict. Fourth.
That his honor erred in charging the jury: (1) 'That the
matter of motive or intent does not enter into this case. (2)
That the charge was that defendant, when he went out of
office, had funds belonging to this Fort estate; *** that he
failed, refused, at the time that he went out of office, or
within thirty days thereafter, to pay over to his successor
***; that the offense consists in the omission or refusal to
perform an official duty upon the part of Mr. Assmann,--that
is, the omission or neglect to pay over this money, or the
refusal to pay it over, if it was in his hands, upon demand.
Refusal implies demand.' (3) That ' the motive and
intent, I must charge you, according to my construction of
this statute, right or wrong, does not enter into the
question."'
Before
the jury was sworn, the defendant moved to quash the
indictment on the four grounds set out in exception 1 above,
which motion was refused. The following is the indictment:
"The State of South Carolina, County of Lexington. At a
court of general sessions begun and holden in and for the
county of Lexington, in the state of South Carolina, at
Lexington C. H., in the county and state aforesaid, on the
third Monday of September, in the year of our Lord 1895, the
jurors of and for the county aforesaid, in the state
aforesaid, upon their oath present: That William J. Assmann,
late of the county and state aforesaid, on the 1st day of
April, in the year of our Lord 1890, and on divers other days
since said day, and up to the 8th day of December, in the
year of our Lord 1891, with force and arms unlawfully did
commit official misconduct in this: that he, the said William
J. Assmann, was duly elected clerk of the court of common
pleas and general sessions of Lexington county at the regular
general election in the year 1888, and duly qualified as such
within the time required by law, and entered upon and
continued to discharge the day duties of said office up to
and until the 8th day of December, in the year of our Lord
1891, at which time one Isaiah Haltiwanger succeeded him, the
said William J. Assmann, as clerk of the court of common
pleas and general sessions of the county of Lexington
aforesaid, and entered upon the discharge of the duties of
said office. And at that time aforesaid to wit, on the 8th
day of December, in the year of our Lord 1891, the said
William J. Assmann then and there had and held in his hands a
certain sum of money, to wit, the sum of nineteen hundred and
twenty-six 45/100 dollars, which had been received him, the
said William J. Assmann, as clerk as aforesaid, in
proceedings had in a case entitled 'Ex parte E. E. Fort,
as administratrix of the estate of Hugh L. Boyd, deceased, In
re E. E. Boyd, as administratrix as aforesaid, plaintiff, vs.
Mary L. Lee, as executrix, and others, defendants' which
said sum of money the said William J. Assmann, upon the
succession of him, the said Isaiah Haltiwanger, to the office
aforesaid, at the time aforesaid, and within thirty days
thereafter, he, the said William J. Assmann, failed to pay
over to his successor in office as clerk of the court of
common pleas and general sessions of Lexington county, to
wit, to the said Isaiah Haltiwanger, the aforesaid sum of
nineteen hundred and twenty-six 45/100 dollars, paid him as
clerk as aforesaid, under the proceedings aforesaid,--against
the form of the statute in such case made and provided, and
against the peace and dignity of the state. P. H. Nelson,
Solicitor."
The
first question is, does the indictment allege, that the
offense was committed in Lexington county? We think that it
does. "County of Lexington" appears in the margin.
In the caption, which, as our courts have declared (
State v. Moore, 24 S.C. 155), ends with the word
"presents," we find "County of
Lexington," at "Lexington Court House,"
"in the county and state aforesaid," "of and
for the county aforesaid." While it is true that the
caption is strictly no part of the indictment or charge which
defendant is called upon to answer (State v. Williams, 2
McCord, 301), still it does not follow that the place
mentioned in the margin or in the caption, or in the
"commencement" of an indictment, may not be carried
forward into the "statement" or charging part of
the indictment by such words as "county aforesaid,"
"then and there," etc. In Clark's Criminal
Procedure (page 247) it is stated: "Where the county is
mentioned in the margin or commencement, or perhaps even in
the caption only, it will be sufficient to refer to it
afterwards by the words 'in the county aforesaid,' or
'then and there;"' citing 2 Hale, P. C. 180, 2
Hawk. P. C. c. 25 § 34; Rex v. Burridge, 3 P. Wms.
496; Haskins v. People, 16 N.Y. 344; Barnes v
State, 5 Yerg. 186; Strickland v. State, 7 Tex.
App. 34; State v. Conley, 39 Me. 78; Turns
v. Com., 6 Metc. (Mass.) 224; State v. Ames, 10
Mo. 743; State v. Cotton, 4 Fost. (N. H.) 143;
State v. Slocum, 8 Blackf. 315; Evarts v.
State, 48 Ind. 422; State v. Bell, 3 Ired. 506;
State v. Tolever, 5 Ired. 452; Noe v.
People, 39 III. 96; Hanrahan v. People, 91 III.
142; State v. Salts (Iowa) 39 N.W. 167; State v.
Reid, 20 Iowa, 413. An information that did not state in
its body the place where the offense was committed was
nevertheless held sufficient where the county was mentioned
in the caption, and the words of reference "then and
there" were used in charging the crime. State v. S.
A. L., 77, Wis. 467, 46 N.W. 498. In State v.
Moore 24 S.C. 155, the case of Reeves v. State,
20 Ala. 33, was cited. In this last case, on the margin of
the indictment, appeared the words, "The State of
Alabama, Butler County." In the body of the indictment
it was recited that "the grand jurors," etc.,
"of the county of Buter, upon their oath present,"
etc.,without repeating again the name of the county, not
naming any other county, but charging that the offense was
committed "in the county aforesaid." The court
sustained in the indictment, holding that, since there was no
such county as "Buter," which the court was bound
to know, the words "in the county aforesaid" must
refer to the county stated in the margin. Now, the charge
against the defendant was his failure to perform a duty
required of him as clerk of the court. It was alleged in the
charging...
