State v. Buren

• Decision Date: 13 July 1910
• Citation: 68 S.E. 568,86 S.C. 297
• Parties: STATE v. VAN BUREN.
• Court: South Carolina Supreme Court

68 S.E. 568

86 S.C. 297

STATE

v.VAN BUREN.

Supreme Court of South Carolina.

July 13, 1910.

1. Criminal Law (§§ 198, 369^*) — Former Jeopardy—Acquittal—Evidence.

Acquittal under an indictment for practicing medicine without a license on two specified dates by prescribing for unnamed persons does not bar a subsequent indictment for unlawful practice by prescribing for and treating a specified person on a specified day between such dates, since, because the first indictment failed to specify the places of the offenses and the names of the patients, it was necessary under it to prove the dates as alleged, but evidence of offenses on those dates is inadmissible under the second indictment.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 385; Dec. Dig. §§ 198, 369.*]

2. Criminal Law (§ 196*)—Former Jeopardy.

A test whether two indictments charge the same offense, as affecting a plea of former jeopardy, is whether the evidence necessary to support the second indictment would have sustained a conviction under the first.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 384; Dec. Dig. § 196.*] Appeal from General Sessions Circuit Court of Richland County; G. E. Prince, Judge.

H. Van Buren was indicted for practicing medicine without a license, and the State appeals from a judgment sustaining a plea of former acquittal. Reversed.

Wade Hampton Cobb, Sol., for the State.

James S. Verner, for the respondent.

WOODS, J. The defendant was indicted for practicing medicine without the license required by statute. The circuit court, without submitting the issue to the jury, sustained the plea of former jeopardy and acquittal, and the state appeals.

The portion of the first indictment material to the issue was: " * * * The jurors of and for the county aforesaid, in the state aforesaid,.upon their oath present: That H. Van Buren, * * * on the fifth day of November, in the year of our Lord one thousand nine hundred and eight, * * * did practice medicine, in that he, the said Van Buren, did prescribe for the physical ailment of another. * * * And * * * that H. Van Buren, on the tenth day of October, in the year of our Lord one thousand nine hundred and eight, * * * did practice medicine, in that he, the said Van Buren, did prescribe for a physical ailment of another.

* * * " On this indictment the defendant was tried and acquitted. The second indictment charged: " * * * The jurors of and for the county aforesaid, in the state aforesaid, upon their oath present that H. Van Buren, * * * on the 28th day of October, in the year of our Lord one thousand nine hundred and eight, * * * did unlawfully practice medicine by prescribing for the physical ailments of Mary Crim and by treating the physical ailments of the said Mary Crim.

* * * " The statute contemplates that every violation of its provisions shall be a separate offense. The question is whether it appeared from the face of the indictment that the offenses charged were the same, so that an acquittal under the first indictment would be a bar to a trial under the second.

It will be observed that the charge in the first indictment is entirely indefinite, except as to the time. No person or place is mentioned, and no circumstances or particular description, except the dates of the alleged offenses. For this reason the time mentioned was a material part of the description of the offense, and it was necessary to prove the dates as alleged. The court says, in State v. Reynolds, 48 S. C. 384, 26 S. E. 679: "It is well settled that it is not necessary to prove the precise day, or even year, laid in the indictment, except where time enters into the nature of the...