Enactment or Statues — Former Trial — Charge Upon Facts-Presumption of Regularity.
1. Where, from a certified copy of the original draught of an act of the legislature, it appears that the draught is upon a paper bearing the heading "A Joint Resolution, " which words are marked
out, and the words "A Bill" written instead, it will be presumed, in the absence of marginal notes, that the substitution was made by the draughtsman, and that the paper was introduced as a bill, not as a joint resolution.
2. The fact that certain amendments suggested by a conference committee, and agreed to by both houses, were not read three times, and on three several days, in each house, does not render the act invalid.
8. The two houses of the legislature may suspend their own rules against reading a bill on the last day of a session, and an act is not rendered unconstitutional by such reading. There is no constitutional provision against a reading upon that day.
4. Where, under an indictment for burglary of the "cotton-house of J. C. Nance, " appurtenant to his dwelling-house, it appeared that the house belonged to Rufus Nance, and thereupon the court directed an acquittal, the acquittal was no bar to a new trial under an indictment for burglary of the cotton-house of Rufus Nance.
5. The following instruction was erroneous, as violating Const. S. C. art. 4, § 26, which provides that judges shall not charge as to matters of fact "Now, it is contended that the testimony is not to be believed, because you cannot assume that this defendant would do such foolish and silly things as the testimony shows. I don't know what a thief would do, and I hope none of you know. It only takes a thief to know what a thief would do, and sometimes one thief does not know what another will do. * * * It is my belief that, if a thief would only do what a wise and prudent man would do, he would not steal at all. * * * We cannot assume that one charged with theft will do the things which are wise and prudent and careful. "
6. The following charge was erroneous for the same reason: " First, it is said that it [the testimony] is incredible, because the man went out there, and saw the thing going on, and did not interfere to arrest the man or to stop him. Is the fact * * * that he did not attempt to arrest him alone, —a difficult matter there, in the nighttime, —is that such a dreadfully foolish and incredible thing as to make you doubt his testimony, if there is no other reason to doubt it? * * * Would an outside thief come there to steal for the benefit of Ben Brown, and take cotton from Mr. Nance, and put it on Ben Brown's pile? Is the^e any room left for a reasonable doubt as to his [defendant's] identification?"
7. Where the " case " shows nothing to the contrary, it will be presumed that the accused was properly arraigned under the indictment upon which he was convicted.
8. There was no error in permitting the solicitor to commence the investigation by asking the prosecuting witness, "Did anyone break into" house on your place last year?"
9. Defendant's counsel was properly prevented from asking his own witness as to what he had testified on the preliminary trial. Such evidence would be mere hearsay.
Appeal from general sessions circuit court of Spartanburg county; Pressley, Judge
The appellant was convicted of burglary by breaking and entering a cotton-house belonging to Rufus Nance. The charge was as follows:
"If a door of a house have no other fastening than a latch, it is a breaking and entering to lift the latch. That law had been settled before our great-grandfathers were born, and continues that. So much for that. Now, did the defendant lift the latch of that cotton-house that night, and steal part of that cotton, taking it out of one end of the house, and putting it upon his own pile at the other end? That is what is the charge. Now, gentlemen, it is contended that the testimony of the witnessesis not to be believed by you because you cannot assume that this defendant would do such foolish and silly things as the testimony shows. Gentlemen, 1 don't know what a thief would do, and I hope none of you know. It only takes a thief to know what a thief will do, and sometimes one thief does not know what another will do. The fact is, gentlemen, it is my belief that, if a thief would only do what a wise and prudent man would do, he would not steal at all. That is my idea of the matter, and therefore we cannot assume that one charged with theft will do the things which are wise and prudent and careful. We can-not assume any such thing. It is no test of the truth of testimony at all.
"The question, then, is, did these witnesses tell the truth? First, it is said it is incredible, because the man went out there, and saw the thing going on, and did not interfere to arrest the man then, or to stop him. If, as he says, he saw the defendant taking cotton from his pile, and putting it at the other end of the house, on his own. it had not gone so far that he could not get it just at any time he pleased, and there is no reason why he should then interfere to put a stop to it, if he chose. Next, you will consider the circumstances as to what is wise and prudent for him to do. It does not appear that he was armed, and it does appear that he left his little wife in the house in bed scared; and the question is, whether many a man might not doubt if that was the best way to do the thing, and let him go on. You are to judge of that, and determine the matter; but the question for you to decide is the fact that he did let him go on, that he did not do anything to alarm his wife, and that he did not attempt to arrest him alone, —a difficult matter there in the nigh t-time, —is that such a dreadfully foolish and incredible thing as to make you doubt his testimony, if there is no other reason to doubt it? That is the question for you to decide.
"Then, if you believe his testimony, and the testimony of his wife, then comes the question of identification. Has he so identified this man as that you can confidently and without reasonable doubt say that this is the man? The wife says that she knew his voice, and she had known his voice pretty well from the March previous. The husband says he knew his voice, and he said, after he went out, standing in some 20 to 25 feet of him, he saw him. and knew him. Furthermore, the cotton taken from one end was put upon the defendant's pile at the other end, and it is for you to say if any outside thief would do that, if there was any mistake about the identification. Would an outside thief come there to steal for the benefit of Ben Brown, and take cotton from Mr. Nance, and put it on Ben Brown's pile? That is the question which you are to consider. And, furthermore, the man does not rely altogether on his eye-sight and the hearing of the voice on this matter; but he says, after he got through with his work, he ran after a fowl, and caught it, and he traced the feathers of the fowl that he caught all along the way to Ben's house. If the person who was stealing this cotton was the
person that took the fowl, he traced it, and ho followed the feathers along the track, after he stole it, to Ben Brown's
house.
" Now, gentlemen, the question is, is there any room left for reasonable doubt as to his identification? If you believe the witnesses, that that cotton was taken that night, and that Ben Brown was the person who took it, what must your verdict be? You cannot find him guilty upon the first count. The first count charges him with breaking and entering the dwelling-house. There is a difference between a common-law burglary and a statutory burglary. The first count charges a common-law burglary, and a common-law burglary must be actually committed upon the dwelling-house. He said he shook the door of the dwelling-house, but that was not breaking and entering. The second count charges him with having committed a burglary on a cotton-house appurtenant to the dwelling-house, and within 200 yards of it. That is statutory burglary, and, if you believe he is the person that did that then you can only say, ' Guilty upon the second count.' Of course, if you have any reasonable doubt in the matter whatever, you must give the defendant the benefit of it. But ' reasonable doubt' does not mean guess-work; it means a reasonable doubt, founded upon the evidence."
W. Waddy Thompson, for appellant.
O. L. Schumpert, for respondent.
