State v. Dawkins

• Decision Date: 07 January 1890
• Citation: 10 S.E. 772,32 S.C. 17
• Parties: STATE v. DAWKINS et al.
• Court: South Carolina Supreme Court

10 S.E. 772

32 S.C. 17

STATE v. DAWKINS et al.

Supreme Court of South Carolina

January 7, 1890

Appeal from general sessions circuit court of Edgefield county PRESSLEY, Judge.

Gary & Evans, for appellants.

Mr Nelson, for the state.

MCIVER J.

This case was submitted without argument on either side, and the record consists only of the testimony, the charge of the circuit judge, and the grounds of appeal, together with a brief statement of what occurred in the court below after the verdict was first rendered; but what sentence was passed upon the defendants nowhere appears. We are therefore left to conjecture whether the accused were sentenced to imprisonment in the penitentiary, with hard labor, during their whole lives, as originally provided by the act of 1883. 18 St. 290. Under these circumstances, we might well decline to hear this appeal, and, but for the gravity of the case, would probably do so. We will, however, proceed to consider the case, as well as we can, upon such materials as have been furnished to us.

It may be gathered from the testimony set out in the record that these defendants were charged with burglariously entering a house used as an hotel, in which the prosecutors resided, and stealing therefrom a considerable sum of money; and we infer from some remarks made by the judge in his charge to the jury that the indictment contained two counts,--the first, for burglary; and the second, for grand larceny, simply. We may also infer that the time laid in the indictment was the 19th of June, 1889, while the testimony pointed to the 21st of June, of the same year, as the date on which the offense was committed. The jury rendered a general verdict, in these words: "We find both the defendants guilty;" and the jury were thereupon discharged for that day, and the court adjourned until the next morning. On the next morning when the court reconvened, the judge directed the same jury which had rendered the verdict to be reimpaneled, and had the defendants brought before them; and their attention was called to the size and age of the defendants. The judge then stated to the jury that he had omitted, in charging them in this case, to call their attention to the amendment of the previous statute on the subject, whereby they might, by a recommendation to mercy, cause the punishment of the offense of burglary to be reduced from imprisonment for life to a less term; and the jury were directed to retire, and say whether they would recommend the defendants to the mercy of the court or not. The jury then retired, and returned with a verdict in these words: "We find both defendants guilty and recommend to mercy." The defendant William Dawkins alone appeals upon the grounds set out in the record.

The first ground imputes error in admitting testimony tending to show that a burglary was committed on the 21st day of June; the indictment charging that the offense was committed on the 19th of June. The rule is well settled that it is in no case necessary to prove the precise day, or even year, laid in the indictment, except where time enters into the nature of the offense; but, on the contrary, any day previous to the finding of the bill may be proved, instead of the day alleged in the indictment. 1 Chit. Crim. Law, 224; State v. Anderson, 3 Rich. Law, 176; State v. Porter, 10 Rich. Law, 148. Now, while it is necessary, in an indictment for burglary, both to allege and prove that the offense was committed in the night-time of some day, yet the precise day is wholly immaterial, provided it is anterior to the finding of the bill of indictment.

The second and sixth grounds of appeal impute error to the circuit judge in failing to define the crime of burglary, and in instructing the jury that "if the house was entered in the night-time, on Friday night, at the time Mr. Jones heard some one walking there, then, if you believe he shut it up, as he said he did, if it was entered after that, and the money taken that night, then it was burglary." It is true that the circuit judge, when counsel called his attention to the fact that he had given the jury no definition of "burglary," did say: "I don't intend to define 'burglary;"' but he immediately proceeded to explain to the jury that, if they believed certain facts which had been testified to in this case, such facts would constitute burglary, at the same time informing them that, even if the house was entered in the night-time, when any portion of it was open, it was not burglary. While, therefore, he did decline to define in general terms the offense of burglary, he did lay down correct principles of law applicable to the...