State v. Des Champs

• Decision Date: 06 December 1923
• Docket Number: 11356.
• Citation: 120 S.E. 491,126 S.C. 416
• Parties: STATE v. DES CHAMPS.
• Court: South Carolina Supreme Court

120 S.E. 491

126 S.C. 416

STATE v. DES CHAMPS.

No. 11356.

Supreme Court of South Carolina

December 6, 1923

Appeal from General Sessions Circuit Court of Sumter County; J. W De Vore, Judge.

From an order granting a new trial to J. M. Des Champs after a conviction of violating the malicious mischief statute, the State appeals. Reversed and cause remanded for the imposition of sentence.

F. A McLeod, Sol., and Epps & Levy, all of Sumter, for the State.

Harby Nash & Hodges, of Sumter, for respondent.

MARION J.

The defendant was convicted of a violation of the statute, now section 74, 2 Code 1922, the provisions of which are as follows:

"Whoever shall willfully, unlawfully, and maliciously cut, mutilate, deface, or otherwise injure, any tree, house, outhouse, fence, or fixture of another, or commit any other trespass upon real property in the possession of another, shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined and imprisoned, at the discretion of the judge before whom the case shall be tried: Provided, that when the damage to such property does not exceed twenty dollars, the punishment shall be a fine of not more than one hundred dollars, or imprisonment for a period of not more than thirty days."

The nature of the offense charged and proved was that the defendant, who lived some 300 or 400 yards from one P. B. Hodges, on adjoining land, drove along the public highway and threw the live nuts of nut grass, a noxious and injurious plant, into the fields of his neighbor, Hodges, to the damage of the latter's farm in an amount exceeding $20. The evidence tended to establish damage to the land in an amount ranging from several hundred dollars to $1,000.

The circuit judge granted a new trial upon the following ground:

"Take this down, Mr. Stenographer: 'The injury or damage contemplated by that act must be the direct result of the trespass, concurring as an incident in point of time, or, if not concurrent in point of time, then the act relied upon to constitute trespass should operate voluntarily, directly without any responsible intervening cause to produce the injury and damage, and unless the damage is above twenty dollars, this court has no jurisdiction.' A new trial is given for the reasons taken down by the stenographer."

The ruling quoted was prefaced by certain remarks of the judge which tend to explain and elucidate the ruling, as follows:

"Under that statute, it seems to me that the charge of trespass, or rather of damage, must follow immediately with the act charged, with trespass. Now, the throwing the nut grass, such as the evidence here showed, wrapped up in balls, that itself could not have damaged the land, unless the ball fell and mashed down the land, except by the act of God. That could not be an immediate damage caused by the act of trespass charged."

From the order granting the new trial the state has appealed upon the ground that it was based wholly upon an erroneous view of the law. The question of the state's right to appeal has not been raised, but where the grant of a new trial in a criminal cause is predicated wholly upon error of law, we think an appeal by the state will lie. State v. Benton, 85 S.C. 107, 67 S.E. 143; State v. Lynn (S. C.) 113 S.E. 74; State v. Johnson, (S. C.) 115 S.E. 748. In the case at bar, doubtless in recognition of that consideration, the able and learned circuit judge seems to have rested his ruling squarely upon the proposition of law embodied in his construction of the malicious mischief statute, as above indicated.

In the view of the statute taken by the circuit judge, however, we find ourselves unable to concur. The tort here involved denounced as a misdemeanor by the statute, is the malicious "trespass upon real property"; the "damage to such property" the quantum of which determines the punishment, which in turn determines the court having jurisdiction of the offense, is any damage which results from the wrongful act or trespass as a natural and probable consequence. The law applicable in ascertaining and appraising the consequential damage resulting from such criminal act is the familiar law of proximate cause. But that doctrine is more broadly, rather than more narrowly, applied against the wrongdoer in a criminal prosecution than against the tort-feasor in a civil action. Thus, in a criminal action, the wrongdoer whose crime has resulted in injury to another will not be absolved on the ground that the wrongful act or negligence of the person injured contributed to the injury as a proximate cause. 16 C.J. 93, § 63; State v. Hanahan, 111 S.C. 58, 96 S.E. 667; State v. Badgett, 87 S.C. 543, 70 S.E. 301. In limiting the damage...