State v. Evans

• Decision Date: 21 October 1882
• Citation: 18 S.C. 137
• Parties: STATE v. EVANS.
• Court: South Carolina Supreme Court

18 S.C. 137

STATE v. EVANS.

Supreme Court of South Carolina.

October 21, 1882

1. Defendant was convicted under an indictment that alleged a burglary in " a gin-house, situate within the curtilage of the dwelling-house." Held , that judgment should be arrested, because the indictment failed to allege that the gin-house was within two hundred yards of the dwelling-house and appurtenant to it, two averments that were essential under the statute. Gen. Stat. of 1882, § 2483.

2. And the defendant having been tried, convicted and sentenced for statutory burglary, the conviction cannot be referred to the indictment as sufficiently charging the higher offense of burglary at common law.

Before ALDRICH, J., Abbeville, February, 1882.

The opinion states the case.

Mr. T. P. Cothran , for appellant.

Mr. Solicitor Orr , contra.

OPINION

MR JUSTICE MCGOWAN.

George Evans was convicted of burglary and sentenced to three years in the penitentiary under an indictment in the following terms: " That George Evans, late of the county and State aforesaid, on February 7th, 1882, with force and arms, at Abbeville court house, in the county and State aforesaid, in the night-time of the same day, the dwelling-house; that is to say, the gin-house, situate within the curtilage of the said dwelling-house of one James D Fooshe, in the county and State aforesaid, feloniously and burglariously did break and enter," & c. The testimony showed that the gin-house was eighty yards from the dwelling-house of J. D. Fooshe, within the common enclosure; was used for storing cotton in the seed and ginning, and as a shelter for his stock; and was an appurtenance of the dwelling-house.

Upon being arraigned for sentence, the defendant made a motion in arrest of judgment upon the following grounds: 1. " That the indictment was fatally defective in not alleging that the gin-house, the subject of the burglary, was within two hundred yards of the dwelling-house of the prosecutor. 2. That the indictment was fatally defective in not alleging that the said gin-house was an ‘ appurtenant’ to the dwelling-house of the prosecutor." The motion was refused. He now appeals to this court, and renews the motion upon the grounds stated.

It appears that the evidence brought the case within the definition of burglary under the statute, so far as the subject of it was concerned, for the gin-house was shown to be within eighty yards of the dwelling-house of the prosecutor. The question, however, is not as to the facts proved, but as to the sufficiency of the allegations in the indictment. " An indictment is the complaint of the State against the accused. It should charge some offense cognizable by the court, and this offense, whatever it may be, should be clearly and distinctly set forth. The crime charged should be described with certainty, for no latitude of intention will be allowed to include anything more than is expressed." State v. McKettrick , 14 S. C. 353. Nor can the evidence supplement the statements of the indictment. " Every indictment must contain and set forth all the necessary ingredients of an offense, and no omission, in such statements, can be supplied by innuendo or evidence." State v. Henderson , 1 Rich. 184. " In setting out an offense against a statute, the defendant must be brought within all the material words of the statute, and nothing can be taken by intendment." State v. O'Bannon , 1 Bailey 144.

It is true that it is not necessary to set out the very words of the statute; but, according to these principles as to the particularity required in criminal proceedings, we do not think that the indictment was sufficient under the statute which is as follows: " With respect to the crimes of burglary or arson, and to all criminal offenses, which are constituted or aggravated by being committed in a dwelling-house, any house, out-house, apartment, building, erection, shed or box, in which there sleeps, & c., *** shall be deemed a dwelling-house; and of such a dwelling-house, and of any other dwelling-house, all houses, out-houses, buildings, sheds and erections, which are...