State v. Dewees

• Decision Date: 09 February 1907
• Citation: 56 S.E. 674,76 S.C. 72
• Parties: STATE v. DEWEES.
• Court: South Carolina Supreme Court

56 S.E. 674

76 S.C. 72

STATE v. DEWEES.

Supreme Court of South Carolina

February 9, 1907

Appeal from General Sessions Circuit Court of Charleston County Aldrich, Judge.

George W. Dewees was indicted for breach of trust. From an order sending an issue of former jeopardy to the jury, the state appeals. Dismissed.

W. St Julian Jervey, for the State. Geo. F. Von Kolnitz, for respondent.

JONES J.

The defendant, being arraigned upon an indictment charging breach of trust with fraudulent intent, interposed in bar a plea of former acquittal for the same offense, and exhibited the former indictment as a part of said plea, whereupon the solicitor for the state pleaded as follows: "And now comes the state of South Carolina, and demurs to the within plea because it is apparent by said plea that the offense charged in the indictment now before the court, and that charged in the former indictment, which has been made a part of said plea, are distinct and different, and require the proof of distinct and different facts, as will appear by examination of the two said indictments." The defendant's counsel, conceiving this to be a traverse of the facts alleged in his plea, demanded a trial of the issue by jury, while the solicitor contended that the court should decide the issue upon his demurrer. The circuit judge, construing the solicitor's pleadings as a denial of the facts alleged in defendant's plea, was of the opinion that the issue should be admitted to a jury. The solicitor thereupon announced that he was not ready to proceed as his witnesses were absent. That being the last day of the term, the case was ordered to be continued. The state appeals and presents the following exceptions to the rulings of the court: "(1) Because his honor erred in holding that a demurrer may be tried by a jury. (2) Because his honor erred in holding that a reply of the state to the plea in bar is a traverse, and not a demurrer. (3) Because his honor erred in holding that an issue of fact was raised by the pleadings which should be tried by a jury; whereas, he should have held that the only issue raised rested on the construction of the indictments, written documents, which devolved upon the court. (4) Because his honor erred in holding that it is the right of the defendant to have the issue here presented tried before a jury; whereas, he should have held that the practice and usage in this state is for the judge to try the issue arising on this plea, whether they be issues of law or fact." No question has been raised as to the right of the state to appeal in this status of the case.

1. The plea of autrefois acquit is of a mixed nature, and consists partly of matter of record and partly of matter of fact. The matter of fact is the averment of the identity of the offense and of the person as having been formerly acquitted. 4 Blackstone's Com. 335; 1 Archbold's Crim. Prac. & Pl. 348; Clark's Crim. Proc. 405. If, therefore, it was correct to construe the Solicitor's response to the plea as a traverse of the facts alleged, it was proper to submit such special issue of fact to a jury; the defendant not consenting to a trial thereof by the court. 2 Leach, 541; Hite v. State, 9 Yerg. (Tenn.) 357; Archbold Crim. Prac. 348; 1 Bishop Crim. Proc. par. 816. The Constitution guaranties the accused the right of trial by jury in all criminal prosecutions. We have said this much in response to the contention by the state under the fourth exception--that issues of fact arising on a plea of former acquittal should be tried by the court.

2. We think, however, that the circuit court was in error in supposing that any issue of...