State v. Bouknight

• Citation: 33 S.E. 451,55 S.C. 353
• Parties: STATE v. BOUKNIGHT.
• Decision Date: 22 June 1899
• Court: United States State Supreme Court of South Carolina

33 S.E. 451

55 S.C. 353

STATE v. BOUKNIGHT.

Supreme Court of South Carolina

June 22, 1899

Appeal from general sessions circuit court of Saluda county; Ernest Gary, Judge.

Prince Bouknight was indicted for breaking and entering the weather house of one Eli Kinard, and from an order compelling the state to elect on which count it would go to trial, and an order quashing the first count, the state appeals. Affirmed as to the first order, and reversed as to the second.

J. Wm Thurmond, for the State.

S. McG. Simkins and Arthur S. Tompkins, for respondent.

McIVER C.J.

The indictment in this case contained three counts,--the first charging the defendant with feloniously breaking and entering, on the 13th of March, 1898, in the nighttime, the weather house of one Eli Kinard, with intent the goods and chattels of Eli Kinard and Jake Kinard, in the said weather house then and there being found, to unlawfully steal, take and carry away; the second charging the defendant with the simple larceny of certain goods and chattels of Eli Kinard and Jake Kinard; and the third count was in all respects similar to the first count, except that the defendant was charged with breaking and entering the said weather house in the daytime. All of these counts concluded, "contra formam statuti et contra pacem." Before the jury was sworn, defendant moved that the solicitor be required to elect upon which of the two counts for house-breaking (the first and the third) he would go to trial. This motion was granted by his honor, Judge Ernest Gary, notwithstanding the statement made by the solicitor that both counts were based upon the same transaction, and were put in to meet the proof. The solicitor then elected to go to trial on the first count. Thereupon the circuit judge asked counsel for defendant if there was a motion to quash the first count upon the ground that there was no allegation therein that "the breaking and entering of which house would not constitute burglary," to which defendant's counsel replied that no such motion had been made, but he would then make the motion to quash the first count in the indictment. The motion to quash was granted, whereupon the solicitor gave notice of appeal, and further proceedings in the case were suspended pending such appeal.

The solicitor bases his appeal upon two exceptions: (1) That there was error on the part of the circuit judge in requiring him to elect upon which of the two counts--the first and third--he would go to trial; (2) because of error in quashing the first count in the indictment.

The indictment is confessedly framed under the criminal statute (2 Rev. St. p. 314, § 142) which reads as follows "Every person who shall break and enter, or who shall break with intent to enter, in the day time, any dwelling house or other house, or who shall break and enter, or shall break with intent to enter, in the night time, any house, the breaking and entering of which would not constitute burglary, with intent to commit a felony, or other crime of a lesser grade, shall be held guilty of a felony, and punishable, at the discretion of the court, by imprisonment in the county jail or penitentiary for a term not exceeding one year." This section, which is but a reproduction, in totidem verbis, of the act of 1887 (19 St. at Large, p. 792), creates two distinct and different offenses, though both belong to the class of felonies, and are punishable in the same way: (1) It is made a felony to break and enter, or to break with intent to enter, in the daytime, any house, whether it be a dwelling house, or a house of any other character, with intent to commit a felony, or other crime of a lesser grade; (2) it is likewise made a felony to break and enter, or to break with intent to enter, in the nighttime, any house, except a dwelling house, or house within the curtilage of the dwelling house, or any house within 200 yards of the dwelling house and appurtenant thereto. It is obvious that the second of these felonies is charged in the first count of the indictment, and that in the third count the first of these felonies is charged; for in the first count the charge is that the defendant broke and entered the house therein specified in the nighttime, while the charge in the third count is that the defendant broke and entered the house therein specified in the daytime. This being so, it is clear that there was no error on the part of the circuit judge in requiring the solicitor to elect upon which of these two counts he would go to trial; for, although the two offenses charged belonged to the same class, and subjected the offender to the same punishment, yet the allegation is that these two offenses were committed at different times,--one in the daytime and the other in the nighttime. Besides, the power of the circuit judge to require the solicitor to elect is a power to be exercised at his discretion. 10 Enc. Pl. & Prac. pp. 546-548, 551; State v. Nelson, 14 Rich. Law, at page 172; State v. Scott, 15 S.C. 435. Now, as it is very certain that there was no abuse of discretion in this case, and, on the contrary, that his discretion was properly exercised, the first ground upon which the solicitor imputes error to the circuit judge cannot be sustained.

The next question is whether there was error in granting the motion to quash the first count in the indictment. While this court has held in the case of State v. Burbage, 51 S.C. 284, 28 S.E. 937, that an order refusing...