State v. Burbage

• Court: South Carolina Supreme Court
• Writing for the Court: McIVER, C.J. JONES, J.
• Citation: State v. Burbage, 51 S.C. 284, 28 S.E. 937 (S.C. 1898)
• Decision Date: 15 February 1898
• Parties: STATE v. BURBAGE.

28 S.E. 937

51 S.C. 284

STATE v. BURBAGE.

Supreme Court of South Carolina

February 15, 1898

Appeal from general sessions circuit court of Greenville county; R C. Watts, Judge.

Charles F. Burbage was indicted for murder, as an accessory before and after the fact. He moved to quash the indictment, and the motion being overruled, he presented a purported plea in abatement, which was also overruled. From the overruling of the motion and plea, defendant appeals. Dismissed.

Haynsworth & Parker and Blythe & Blythe, for appellant.

M. F Ansel, for the State.

McIVER C.J.

In this case the indictment contained three counts: In the first count, one William Peter T. Rowley was charged with the murder of one Joel Augustus Tanner and the appellant, Burbage, was charged as accessory before the fact to such murder; in the second count, Rowley and Burbage were jointly charged with murder of Tanner; and in the third count the appellant was charged as accessory after the fact to the murder of Tanner, alleged to have been committed by Rowley. It appears that at January term, 1897. Rowley alone was put upon his trial (the case, as to Burbage, having been continued by the solicitor), when Rowley was convicted of manslaughter, and duly sentenced therefor. At the July term, 1897, when Burbage was put on his arraignment, he moved to quash the indictment upon the several grounds which will be hereinafter stated. This motion was refused by his honor, Judge Watts, and exceptions to his ruling were duly noted. The defendant then presented a "plea of abatement," as it is called, which was likewise overruled, whereupon the defendant gave due notice of intention to appeal, basing the same upon the several exceptions set out in the record. It seems to us that this appeal is premature, and for this reason the appeal must be dismissed, without prejudice to the right of appellant to raise any pertinent questions under an appeal from any final judgment which may be rendered upon the subsequent trial of this case. In the case of State v. McKettrick, 13 S.C. 439, it was held that the sentence of the prisoner in the court of general sessions is the final judgment, from which alone can an appeal be taken. In that case the prisoner had been convicted, but, as no sentence had been passed, this court declined to hear the appeal. The case now under consideration is a stronger case than that cited, for here there is not only no sentence, but no conviction. In the case of State v. Shiver, 20 S.C. 403, 404, in speaking of an appeal from the refusal of a motion to quash an indictment, Mr. Justice McGowan, in delivering the opinion of the court, says, "In ordinary circumstances, and according to what is believed to be the more common practice, the decision of the presiding judge is not open to review by a higher court;" citing 1 Bish. Cr. Proc. § 701. Especially is this so where, as in that case, as well as in this, the same points raised by the motion to quash the indictment, may, after final judgment, be raised by a motion in arrest of judgment. These cases are not only authoritative, but also rest upon good reasons. It is a bad practice, and generally condemned, to hear appeals by piecemeal, especially in criminal cases; for it is destructive of the prompt administration of justice, which is so essential to the peace of society. Besides, it leads to an unnecessary consumption of the time of this court, which could be much better employed than in considering or determining questions which may never become of any practical importance in a given case. If the defendant should be acquitted, then, of course, all the questions presented by the motion to quash the indictment and the so-called plea in abatement would lose all practical importance, and their consideration would become a work of supererogation. If, on the other hand, he should be convicted, we see no reason why all these questions could not be raised on appeal from the final judgment. But a still better reason may be given: To allow appeals to be heard from such preliminary rulings would enable a party charged with the most serious crime always to secure a continuance, when not otherwise entitled to it, by simply moving to quash the indictment, and, when his motion is overruled, give notice of appeal from such ruling, and thereby stop the trial, as was the case in the present instance. Both reason and authority require us to hold that this appeal is premature, and must therefore be dismissed. Inasmuch, however, as the questions presented by the exceptions are important, and have been fully argued, it may not be amiss to consider them, as another appeal may thereby be rendered unnecessary.

The first ground upon which the motion to quash the indictment is rested is that the second and third counts of the indictment are repugnant to each other. This ground cannot be sustained, under the authorities hereinafter cited in considering the second ground of the motion. The second ground is that there is an improper joinder of counts, inasmuch as in the second count the appellant is charged as principal, and in the third count he is charged as an accessory after the fact. In the case of State v. Smith, 18 S.C. 149, the cases in this state upon the subject were reviewed, and the true rule deducible therefrom was thus stated: "Where several distinct offenses are charged in different counts of an indictment, all growing out of the same act or acts, even though subject to different punishments, a general verdict of guilty furnishes no ground for a motion in arrest of judgment, and no ground for a new trial, provided the jury have been explicitly instructed that the effect of a general verdict will be to find the party accused guilty of the highest offense charged in the indictment, and that they have the right to designate in their verdict which one of the particular offenses charged they believe the accused to be guilty of." This rule has been explicitly recognized and applied in the recent case of State v. Woodard, 38 S.C. 353, 17 S.E. 135; and Mr. Justice Pope, in delivering the opinion of the court, cites with approval the two cases of State v. Nelson, 14 Rich. Law, 172, and State v. Scott, 15 S.C. 435, upon which the rule is largely based. It is very obvious that the offenses charged in these two counts both grow out of the same act,--the killing of Tanner. That is the primal fact necessary to be established in order to sustain the charge in either of the two counts, and hence the rule above stated applies, and there is no misjoinder. Nor is there any such repugnancy in these two counts as would be fatal to the indictment. In one sense, a charge of burglary in entering a dwelling house in the night, with intent to steal, would be repugnant to a charge of larceny; and yet these two charges may be joined in an indictment without affecting the validity of the indictment. Indeed, it has been held in this state, in the case of State v. Posey, 7 Rich. Law, 484, that counts for grand larceny and counts for receiving stolen goods, although one is a felony and the other a misdemeanor, may be joined in the same indictment. Surely these two charges are, in one sense, quite as repugnant as a charge of murder and a charge of accessory after the fact. So, also, a count for murder and a count for manslaughter may be joined in the same indictment; and, with the same reason as is here urged, these two counts might be claimed to be repugnant, as malice is necessary to one, and is not to the other, and, if malice appears, then the offense must be murder, and cannot be manslaughter; but if, on the other hand, malice does not appear, then the offense cannot be murder, but must be manslaughter, if it is an offense at all. It is clear, therefore, that neither the first nor the second ground upon which the motion to quash the indictment was based can be sustained.

The third ground of the motion is more formidable, and in fact is, we think, fatal to the third count of the indictment, for it only applies to that count. The well-settled rules of criminal pleading require that an indictment for any offense must contain an allegation of the time when, and the place where, such offense has been committed, though it is not necessary to prove that the offense was committed on the day specifically mentioned in the indictment, as it will be sufficient if the proof shows that the offense was committed on any day within a reasonable time before the true bill is found. See State v. Ray, Rice, 1. So, also, as to the place where the offense is alleged to have been committed, it is absolutely necessary to allege the place, in order to give the court jurisdiction, though it is not necessary to prove the place as specifically alleged in the indictment, provided the proof shows that the offense was committed within the jurisdiction of the court before which the case is tried. State v. Moore, 24 S.C. 150, and State v Colclough, 31 S.C. 156, 9 S.E. 811. It is true that the third count in the indictment under consideration, in the first paragraph thereto, does...