State v. Edwards

Decision Date26 March 1904
Citation47 S.E. 395,68 S.C. 318
CourtSouth Carolina Supreme Court

Appeal from General Sessions Circuit Court of Greenville County Dantzer, Judge.

James D. Edwards was convicted of murder, and appeals. Reversed.

Cothran Dean & Cothran, for appellant. Julius E. Boggs, for the State.


The defendant, under an indictment for the murder of Frank Neeley, was found guilty, with recommendation to mercy, and was sentenced to life imprisonment in the penitentiary, from which he now appeals.

The first, second, and third exceptions allege error in overruling motion in arrest of judgment. This motion was based upon the grounds (1) that the jury law under which the grand jury, which found a true bill, was organized, is unconstitutional, null, and void, and that the defendant has therefore been convicted under a void indictment; (2) that the indictment, when it was handed to the jury, did not contain a count for carrying concealed weapons, as required by the Criminal Code. Judge Dantzer, who tried the case refused the motion upon the ground that the same had not been made before the jury were charged with the trial of the case. It appears that the appellant was represented on said trial by counsel, but no objection was made to the indictment before trial or return of verdict.

We will first briefly notice the second objection above, which is the foundation of the third exception. An examination of the indictment, a copy of which is set out in the "case," shows that it did contain a special count for carrying concealed weapons, in conformity with section 131, Cr. Code, which provides: "In every indictment for murder *** and in every case where a crime is charged to have been committed with a deadly weapon of the character specified in section 130, there shall be a special count in said indictment for carrying concealed weapons, and the jury shall be required to find a verdict on such special count." After the finding of a true bill on said indictment, the solicitor withdrew or nol. pross'd the charge of carrying concealed weapons. Whether the solicitor has the right to withdraw such special count, when he finds that it cannot be sustained, is not involved in this appeal. If the striking out of such special count rendered the indictment defective, as not in accordance with section 131, it was a defect apparent on the face of the indictment, and cannot be raised for the first time on motion in arrest of judgment. Section 57, Cr. Code, provides that "every objection to any indictment for any defect apparent on the face thereof shall be taken by demurrer or on motion to quash such indictment before the jury shall be sworn in and not afterwards."

The other objection is more serious. The "case" shows that during the month of January, 1901, the names of persons to serve as grand and petit jurors for that year were selected and put in the jury box, under act approved February 19, 1900, entitled "An act to amend sections 2236, 2237 of the General Statutes, relating to the drawing and term of service of jurors in the circuit courts of this state, and to validate the jury lists already prepared," and that, in accordance with the provisions thereof, the names of the required number of persons were thereafter drawn to serve as grand jurors for the county of Greenville during said year of 1901, and they were drawn, summoned. and impaneled in accordance with said act; that thereafter, at the May term, 1901, of the court of general sessions for Greenville county, the grand jury so drawn, summoned, and impaneled returned a true bill upon the indictment in this case. This act under which the grand jury was created was held unconstitutional in the case of State v. Queen, 62 S.C. 250, 40 S.E. 553. Const. art. 1,§ 17, provides that "no person shall be held to answer for any crime, where the punishment exceeds a fine of $100 or imprisonment for thirty days with or without hard labor, unless on a presentment or indictment of a grand jury of the county where the crime shall have been committed." It must follow that a conviction and sentence based upon an indictment by a void grand jury cannot stand, unless the defendant has waived his right by not interposing his objection in proper time. The case of State v. Faile, 43 S.C. 52, 20 S.E. 798 shows that the accused may waive his rights to insist upon a constitutional provision like the one quoted above by expressly waiving objection to amendment to an indictment without resubmission to a grand jury. We suppose there is no doubt that one may waive a statutory or unconstitutional provision for his benefit and protection, unless public policy requires its enforcement, but the intention to waive should clearly appear. Was the failure to interpose the objection as to the invalidity of the grand jury before plea to the merits or verdict a waiver of such objection? In answering this question properly, we must keep in mind that...

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1 cases
  • Carrier v. State
    • United States
    • South Carolina Court of Appeals
    • October 25, 2023
    ... ... App. 2018) (quoting Evans v. State , 363 ... S.C. 495, 510, 611 S.E.2d 510, 518 (2005)). "[A]n ... indictment is a notice document. The primary purpose ... of ... an indictment [is] to put the defendant on notice of what he ... is called upon to answer ... " Edwards v ... State , 372 S.C. 493, 496, 642 S.E.2d 738, 739 (2007) ... Specifically, an indictment must "apprise [the ... defendant] of the elements of the offense and ... allow him ... to decide whether to plead guilty or stand trial, and ... enable the circuit ... ...

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