State v. Corbett

• Decision Date: 10 October 1921
• Docket Number: 10719.
• Citation: 109 S.E. 133,117 S.C. 356
• Parties: STATE v. CORBETT.
• Court: South Carolina Supreme Court

109 S.E. 133

117 S.C. 356

STATE v. CORBETT.

No. 10719.

Supreme Court of South Carolina

October 10, 1921

Appeal from General Sessions Circuit Court of Orangeburg County S.W. G. Shipp, Judge.

Carlos Corbett was prosecuted for murder. From the overruling of a demurrer to his plea of former acquittal and an order sustaining the plea, the State appeals. Reversed and remanded.

Watts J., dissenting.

Paragraph 10 of accused's plea was as follows:

(10) That the several shots fired by him from the said revolver at said persons at said time and place, and under the said circumstances, were actuated and moved by the same and identical impulse and constituted one single act of volition namely, to do anything and everything against the said three men, to wit, Bryan Salley, Jule Cooper, and Hugh Fanning, to protect his person and habitation against their joint and confederated aggression.

The ruling of Circuit Judge S.W. G. Shipp on motion to direct a verdict on the grounds of previous acquittal in the above-entitled case was as follows:

The defendant in this case sets up the plea of former acquittal autrefois acquit; he alleges substantially in his plea that he was indicted on March 27, 1920; that heretofore in September, 1920, he was arraigned and pleaded not guilty to the indictment found against him by the grand jury of Orangeburg county charging him with the murder of Bryan Salley on the 27th of March, 1920; that the jury was impaneled and that he was duly acquitted on that charge. He further states that he is now called at the bar of the court to answer to an indictment charging him with the murder of one Julian Cooper on the 27th of March, 1920; he alleges that he was in former jeopardy in the trial for the murder of Bryan Salley because he alleges the evidence necessary to prove the charge against him for the murder of Julian Cooper would be the same evidence as was used against him in the case charging him with the murder of Bryan Salley. He goes on in his plea to state that at his former trial it was in evidence that at his home in his front yard on the night of March 27, 1920, he fired several shots in quick succession at three men, mentioning them, Bryan Salley, Julian Cooper, and Hugh Fanning; that these three parties were making an attack upon him jointly in his own yard, and that he shot from the necessity of defending and protecting his life and home. He further alleges that the act in shooting at these three men, alleged aggressors, constituted one act and one volition; that he shot at no particular one, but was endeavoring to protect himself and his home against aggression; that he killed all three of these men at one time and that it was in pursuance of one act and one volition.

The defendant further alleges that all of these facts came out in the trial for his killing Bryan Salley, and that at that trial three issues were submitted to the jury who tried the case; that three theories were presented to the jury. The three theories that he sets up in his plea are: (1) That the defendant purposely fired at and killed Bryan Salley with malice; (2) that the defendant fired at Julian Cooper and Hugh Fanning, and missing them killed Salley; (3) that with a reckless disregard of human life the defendant fired at the three men, killing them. He says that those three issues were submitted to the jury, and that he was duly acquitted by the jury, and he alleges that the action of the jury in acquitting him is the equivalent to finding that he was excusable in the act that he committed on that occasion. That is substantially what he alleges.

When a defendant puts in a special plea of former acquittal or former conviction, two courses are open to the state: The state may traverse the plea by denying the allegations thereof, and the question would then be one of fact to be tried by a jury, or the state may demur to the plea, and then it becomes a question of law; not a fact for the consideration of the jury, but a question of law for the court. When the defendant demurs to a paper, that is an admission of the facts stated in the paper; it is not an admission of any legal conclusions, but it is an admission of the truth of any fact pleaded in the paper that is properly pleaded. That is held in the case of State v. De Wees, 76 S.C. 74, 56 S.E. 674, 11 Ann. Cas. 991.

In considering a question of former acquittal it involves a consideration of the record. Two indictments involved in the case are made a part of the plea and a part of the demurrer; that is for the consideration of the court. The court considers the record, the indictments, and it also considers partially in a question of fact, where there is the allegation in the plea that it is the same act, the same transaction, and the same volition; that is a question of fact. If the indictment shows that the offenses charged are so distinct and separate that, notwithstanding the demurrer on the part of the state, if the indictment shows that the charges were so separate and distinct, notwithstanding the admissions, the court comes to the conclusion that they are separate and distinct, the court would have to sustain the demurrer. That involves a question of fact; still, if the indictment shows on its face that it could not result from the same act, the state would lose nothing by the demurrer. If on the other hand there can be shown, or if they might have been the result of the same act, that is an admission on the part of the state.

It is unfortunate that in South Carolina the Supreme Court of this state has never ruled on the precise question in this case in any similar case. The state relies on the case of the State v. Thurston, 2 McMul. 382, in which it was held that the indictments in the Thurston Case were so separate and distinct, that notwithstanding the admissions by the demurrer, the court was justified in holding that the offenses charged were not the same act. An examination of the Thurston Case shows--and I have not had as much time to examine these cases as I would like to have had, because I have to rule promptly--an examination of the Thurston Case shows that the indictment in that case involved the question of larceny; where a person is charged with the stealing of goods belonging to A. he cannot be convicted for the stealing of goods belonging to B. That is true, of course, because to convict of larceny, you have to prove the owner is not a different person, the very nature of the ownership or the possession of the property, and where the case could not be the result of one act. It remains to be seen that where a person kills two persons, that may be shown to be the result of the same act.

Counsel for the state has cited the case of State v. Evans, 33 W.Va. 417, 10 S.E. 792, a West Virginia case. An examination of the Evans Case shows that the plea was not set out in that case, and I have not the benefit of knowing exactly what was alleged in the special plea set up. The court held in that case that it could not be one act, because the circumstances alleged showed that there was aggravation from one separate and distinct from the other. The judge who rendered the opinion stated that he could conceive of a case in which the principal might apply, and he cited the case referred to by Mr. Raysor where an engineer was charged with killing a number of people through the negligent running of a train, and the plea interposed was that it was accidental; he was charged with the murder of one of the passengers, and the jury rendered the verdict of acquittal, and it was held that that was an adjudication, and no further criminal liability attached, and he could not be held for the death of other passengers resulting from the same act.

It is recognized by the court that there may be cases where a person may kill more than one person as the result of the same act. That is one case. I can conceive of another case; a sheriff is charged with the custody and with the safety of the prisoners in jail; he stands there for the purpose of protecting those prisoners; an attack is made on him, and he kills ten men, and he is called for trial for the killing of one of the ten men; he sets up the defense that he killed the ten men in the discharge of his official duty; that a mob came there for the purpose of taking the prisoners from the jail, and in defense of their lives he took the life of ten men who were killed. He is tried for killing one of those men, and that question is submitted to the jury, and the jury say he is not guilty; that he was excusable in taking life. There is one act and one purpose to protect the prisoner; that is an adjudication the sheriff acted within the law. There is an instance where the sheriff shot repeatedly, but it was from one design and one purpose, and an adjudication in one case would be an adjudication in all.

No one can testify as to the intent of a person. I cannot testify as to what is in the mind of any other man, but I can testify as to my own intent, and the only person who can testify as to the intent of any person is that person himself. We have in this paper here, admitted by the demurrer, the declaration of the defendant under oath that he had one purpose and one intent, and that was to defend himself against his aggressors. It has been held in a number of cases that the defendant may testify as to his purpose and intent. That is the only evidence we have in the case, and that is admitted by the demurrer.

I am sorry that the state admitted these facts in the demurrer. I am called on to rule on this paper with an admission on behalf of the state; it becomes a question of law, and I am bound; I could not rule otherwise with this admission of intent, the admission of one purpose and one act; I could not rule otherwise than...