State v. Gathers. State

• Citation: 15 S.C. 370
• Decision Date: 01 July 1881
• Docket Number: CASE No. 1048.
• Parties: STATE v. GATHERS. STATE v. SMALLS.
• Court: United States State Supreme Court of South Carolina

15 S.C. 370

STATE

v.GATHERS.

STATE

v.SMALLS.

CASE No. 1048.

Supreme Court of South Carolina.

Jul. 5th, 1881.

1. An appeal cannot be taken by the state from a judgment of acquittal in the Court of General Sessions. Const., Art. I., § 18.

2. This court cannot consider merely speculative questions and give opinions upon disputed points of law, where no rights affecting parties before it are involved.

Before MACKEY, J., Charleston, February, 1881.

These cases were an indictment against Mack Gathers for assaulting and resisting an officer, and an indictment against James Smalls for a like offence. It does not appear when the indictments were found, nor when the offence of Gathers was alleged to have been committed. The assault was made by Smalls, according to the indictment, on June 20th, 1880.

Under the charge of the presiding judge the defendants in both cases were acquitted. The state appealed.

Mr. Solicitor Jervey, for appellant, contended that the state could appeal, although the defendants could not be tried again; and cited 15 Rich. 274;1 Bailey 651;Dudley 295, 296. With him was associated the attorney-general.

Mr. S. J. Lee, contra, cited Const., Art. I., § 18; 2 N. & McC. 16; 19 Mo. 683.

The opinion of the court was delivered by

MCGOWAN, A. J.

We will consider these cases together. The indictment in each was for ““resisting an officer” in the discharge of his duty. In the first case named in the caption the officer was “a special constable who had not given official bond,” and in the case second stated he was “a police officer in the city of Charleston acting without process.” The law bearing upon the two cases is not the same, and much might be said as to the rulings of the Circuit judge in both cases; but in the view which the court takes as to their right to entertain the appeals, they involve identically the same point. Under the charge of the judge the defendants were acquitted and discharged. The solicitor in behalf of the state, alleging error on the part of the judge in each case, appealed to this court and now moves for a new trial in both cases.

Whether or not the Circuit judge erred in his rulings of the law, the defendants were acquitted and discharged and are now out of court. We cannot grant a new trial at the instance of the state. In one of the amendments to the constitution of the United States this declaration appears: “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” In the case Ex parte Lange, 18 Wall. 163, it was held that “if there is anything settled in the jurisprudence of England and America it is that no man shall be twice punished by judicial judgments for the same offence.” Mr. Justice Miller in delivering the judgment says: “The common law not only prohibited a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted. Hence to every indictment or information charging a party with a crime or misdemeanor, whether at the common law or by statute, a plea of autrefois acquit is a good defence.”

In one of the earliest cases in our reports, (State v. Wright, 2 Treadway 517,) it was held that there “can be no new trial in a criminal case where the defendant is acquitted.”

In the case of State v. Bowen, 4 McC. 253, Judge Nott says: “It has not been usual in any case of a criminal prosecutionto grant a new trial for any cause where the party has been acquitted. In the case of State v. Wright et al., 2 Treadway 517, the court were unanimously of opinion that a new trial ought not to be granted even in a case of misdemeanor...