State v. Dalby
| Decision Date | 18 July 1910 |
| Citation | 68 S.E. 633,86 S.C. 367 |
| Parties | STATE v. DALBY. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Charleston County Robt. Aldrich, Judge.
James Dolby was convicted of an assault and battery, and appeals. Affirmed.
Alonzo E. Twine, for appellant. Solicitor John E. Peurifoy, for the State.
Appellant was indicted for an assault and battery with intent to rape and convicted of an assault and battery of a high and aggravated nature. From sentence to five years at labor upon the public works of the county, or in the state penitentiary he appeals.
The defendant moved to quash the indictment, which was in the usual form, on the ground that the statute under which it is laid is unconstitutional. The act referred to is entitled "An act to prescribe the punishment for rape and assault with intent to ravish, and provide for taking deposition of female witness in such cases." 26 Stat. 206. The act merely prescribes the punishment for rape and assault with intent to ravish, and for the taking of the deposition of the female alleged to have been assaulted. It provides also for the presence of the accused at the taking of the deposition, and his right to cross-examination, just as if the testimony were taken in open court.
The indictment was not laid under the statute, but under the common law. The record does not show that the testimony of the prosecutrix was taken by deposition, under the provision of the act. As the defendant was not convicted of rape or of assault with intent to ravish, but only of assault and battery of a high and aggravated nature, the sentence was not imposed under or by virtue of the provisions of the act in question, but under section 78 of the Criminal Code, which is as follows: "In cases of legal conviction, where no punishment is provided by statute, the court shall award such sentence as is conformable to the common, usage and practice in this state, according to the nature of the offense, and not repugnant to the Constitution."
It appears therefore that appellant is not in a position to question the constitutionality of the act upon any ground because it does not appear that any right of his has been affected by its provisions, and the exceptions to the refusal of the court to quash the indictment on that ground present only speculative questions, which this court will not consider. Cantwell v. Williams, 35 S.C. 602, 14...
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