State v. F L. Cardoza

• Decision Date: 29 November 1878
• Docket Number: CASE No. 660.
• Citation: 11 S.C. 195
• Parties: THE STATE v. F L. CARDOZA.
• Court: South Carolina Supreme Court

11 S.C. 195

THE STATE

v.F L. CARDOZA.

CASE No. 660.

Supreme Court of South Carolina.

Nov. 29th, 1878.

1. This court cannot set aside the verdict of a jury on the ground that the verdict was against the evidence, or unsupported by it; such right belongs exclusively to the Circuit Court. The decision of that court is final and conclusive, unless it has committed some error of law.

2. Additional jurors being required at a Circuit Court held in October, 1877, it was proper for the board of jury commissioners in the presence of the Circuit Court, to take from the names of jurors legally in the jury box the names of such as resided within five miles of the court-house, and place them in a separate apartment of such jury box, and then to make their drawing of additional jurors from such apartment.^a1

3. Defendant was put upon his trial under an indictment for conspiracy. Jury No. 1 was called, and the state challenged two jurors, and two other jurors were drawn in their stead from the supernumerary list, who were challenged by defendant, before he indicated his acceptance or rejection of any other jurors. Held, that the challenges thus made were properly disallowed.^b1 WILLARD, C. J., dissenting.^a1

4. Quere: What is the proper mode of empaneling a jury for the trial of a misdemeanor? Legislation and cases reviewed.

WILLARD, C. J., and MCIVER, A. J., hold, that they should be drawn anew, in every case, in open court, and in the presence of the accused, from the whole number of persons serving as jurors. HASKELL, A. J., holds, that the juries should be drawn by lot and organized into juries Nos. 1 and 2, for the trial of misdemeanors, at the commencement of a term of the Court of General Sessions; that when the defendant is put upon his trial, the proper jury in course, in its entirety, should then be presented to him: to supply vacancies caused by challenge, or otherwise, names should be drawn by lot from the list of supernumeraries, and the parties, unless they can show cause, must take them as they are thus drawn.

5. A conspiracy on the part of a public officer, and others conspiring with him, with intent to cheat and defraud the state, through the forms of his own office, is a conspiracy to injure the public, imports a crime under the law of this state independently of the means used for that purpose, and is indictable at common law.

6. A false voucher, manufactured by a state treasurer in order to cover the unlawful abstraction of state funds in his hands, is of the very essence of deception, and thereby the state is cheated and defrauded.

7. When a conspiracy is formed, which has for its object the issuing of a pay-certificate on the state treasury to a fictitious person, for the purpose of defrauding the state, the crime is then complete, and an indictment which charges a conspiracy to this extent is sufficient, although it does not give a specific description as to numbers, date, &c., of the pay-certificate issued in accordance with such agreement.

8. An indictment charging a conspiracy to defraud the state, as it regards its property or revenue, sustained; although no agreement was alleged as to the definite means to be employed for that purpose. Cases reviewed.

9. An extra term of the Court of General Sessions, duly convened, for which no petit jurors were drawn and summoned, held, to be a legally constituted court, at which an indictment might be found by the grand jury.

10. It is not error to admit evidence of the declarations of persons who are charged as co-conspirators with the defendant, not made in his presence, in advance of any proof of the conspiracy other than the testimony of an accomplice.

11. A witness may refresh his memory by memoranda made by himself at the time of the transaction about which he is testifying; and it is not an objection to his use of such memoranda, that they are written in characters capable of being translated only by himself.^a1

12. On the trial of A under an indictment for conspiracy committed by A, B, and C, entries in the books of B and C, a partnership, made by their clerk, a stranger to the conspiracy, may be received as evidence tending to strengthen the testimony connecting B and C with the conspiracy.

13. It is no ground for striking out evidence, that it fails to amount to proof of what was intended by the party introducing it.

14. Where defendant's counsel, in a criminal trial, on the cross-examination of a witness for the state, introduces a subject affecting the defendant, he cannot complain if the state's counsel cross-examine the defendant himself upon the same subject, and introduces witnesses in reply, following in the same line of proof.

15. Where parties to a conspiracy give testimony for the state on the trial of a co-conspirator, entries in their books, corroborating their testimony, alleged to have been made contemporaneously with the transactions which constitute the conspiracy, may be considered by the jury, and if made at the time and for the purpose stated, should be regarded as circumstances in support of their oral testimony.

Before TOWNSEND, J., at Richland, October Term, 1877.

This was an indictment against Richard H. Gleaves, Samuel J. Lee, Josephus Woodruff, A. O. Jones and Francis L. Cardoza, for conspiracy.

At a special term of the Court of General Sessions for Richland county, duly convened, which was begun to be holden in Columbia on August 27th, 1877, Judge J. B. Kershaw presiding, the grand jury being in attendance, but no petit jurors having been drawn or summoned or being in attendance, a true bill was found against the parties above named, for a conspiracy to cheat and defraud the State of South Carolina out of $4000, by means of a false warrant or legislative pay-certificate, drawn in favor of C. L. Frankfort, a fictitious person.

The indictment contained four counts. The first count read as follows:

That at the times hereinafter mentioned, and before and afterwards, Richard H. Gleaves was president of the Senate of the General Assembly of the State of South Carolina, Samuel J. Lee was speaker of the House of Representatives of the General Assembly of the said state, Josephus Woodruff was clerk of the said Senate of the said state, A. O. Jones was clerk of the said House of Representatives of the said state, and Francis L. Cardoza was treasurer of the said state.

That the said Richard H. Gleaves, Samuel J. Lee, Josephus Woodruff, and A. O. Jones, and Francis L. Cardoza, late of the county and state aforesaid, on the tenth day of January, in the year of our Lord one thousand eight hundred and seventy-four, with force and arms, at Columbia, in the county and state aforesaid, unlawfully, falsely, fraudulently and corruptly, did conspire, combine, confederate and agree together, by divers false pretences, to cheat and defraud the said State of South Carolina of a large sum of money, to wit, the sum of four thousand dollars, by means of a certain false and fraudulent paper, in the form of and purporting to be a warrant on the state treasurer, commonly called and known as a pay certificate, drawn by the said Richard H. Gleaves, president of the senate as aforesaid, and the said Samuel J. Lee, speaker of the house of representatives as aforesaid, on the treasurer of the State of South Carolina aforesaid, and attested by the said Josephus Woodruff, as clerk of said senate, and said A. O. Jones, as clerk of said house of representatives, in favor of one C. L. Frankfort, for the said sum of four thousand dollars for account of legislative expenses, they, the said Richard H. Gleaves, Samuel J. Lee, Josephus Woodruff, A. O. Jones, and Francis L. Cardoza, then and there falsely pretending and asserting that the said warrant was lawfully drawn by the said Richard H. Gleaves and Samuel J. Lee in favor of the said C. L. Frankfort for an amount due to the said C. L. Frankfort by the said State of South Carolina, whereas in truth and in fact, the said warrant was not lawfully drawn by the said Richard H. Gleaves and Samuel J. Lee; and whereas, in truth and in fact, the said warrant was not for an amount due the said C. L. Frankfort by the said state, there being no such person as the said C. L. Frankfort, the said name being the name of a fictitious person, and the said warrant being false and fraudulent, as they, the said Richard H. Gleaves, Samuel J. Lee, Josephus Woodruff, A. O. Jones and Francis L. Cardoza, each of them, then and there well knew; and that in pursuance of the said conspiracy, combination, confederacy and agreement so had amongst themselves, the said Richard H. Gleaves, as president of the senate as aforesaid, and the said Samuel J. Lee, as speaker of the house of representatives as aforesaid, on the tenth day of January, in the year of our Lord one thousand eight hundred and seventy-four, at Columbia, in the county and state aforesaid, with the knowledge and consent of the said Josephus Woodruff, A. O. Jones and Francis L. Cardoza, did draw and sign the warrant aforesaid, and thereupon the said Josephus Woodruff, as clerk of the senate as aforesaid, and the said A. O. Jones, as clerk of the house of representatives as aforesaid, did, with the knowledge and consent of the said Richard H. Gleaves and Samuel J. Lee and Francis L. Cardoza, then and there attest the warrant aforesaid, and the said Francis L. Cardoza, with the knowledge and consent of the said Richard H. Gleaves, Samuel J. Lee, Josephus Woodruff and A. O. Jones, did then and there, in payment of the said warrant, give, deliver and issue and divide between them, the said Richard H. Gleaves, Samuel J. Lee, Josephus Woodruff, A. O. Jones and himself, the said Francis L. Cardoza, certain evidences of indebtedness of the State of South Carolina, commonly called and known as certificates of indebtedness, to the amount of four thousand dollars, and of the value of four thousand dollars, the money and property of the said State of South Carolina, they,...