State v. Gillis

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: JONES, J
• Citation: 73 s. c. 318,53 S.E. 487
• Decision Date: 24 February 1906
• Parties: STATE. v. GILLIS.

53 S.E. 487
(73 s. c. 318)

STATE.
v.
GILLIS.

Supreme Court of South Carolina.

Feb. 24. 1906.

1. Criminal Law—Former Jeopardy.

Where defendant was indicted for murder, and convicted of manslaughter, and the verdict was set aside on his own motion and a new trial granted, he may be again tried for murder, and such trial is not a violation of Const, art. 1, § 17, providing that no person shall be subject, for the same offense, to be twice put in jeopardy of life and liberty.

[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 375.]

2. Homicide—Corpus Delicti—Evidence.

All elements composing the corpus delicti on trial for murder may be established by circumstantial evidence.

[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 471, 472.]

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

D. A. Gillis was convicted of manslaughter, and appeals. Affirmed.

G. M. Green, for appellant.

Leroy F. Youmans, Asst. Atty. Gen., for the State.

JONES, J. The appellant was indicted and tried for the murder of Nellie Galphin, and was convicted of manslaughter. Upon his own motion a new trial was granted by the

[53 S.E. 488]

court of general sessions. Thereafter the defendant was again put upon his trial under the same indictment, and entered a special plea that, having been already tried upon an indictment for murder and found guilty of manslaughter, he was thereby acquitted of murder, and could only, if at all, be tried for manslaughter. The trial court sustained the state's demurrer to the plea and ordered on the trial upon the original indictment. Upon the second trial appellant was again convicted of manslaughter and was sentenced to the penitentiary at hard labor for 30 years. By his exceptions appellant renews his contention in this court.

1. The authorities practically agree on the proposition that, when one indicted for murder is convicted of manslaugther, and, upon his own motion, secures a new trial, he may be tried upon the same indictment for manslaughter, upon the ground that he is deemed to have waived his right to plead former jeopardy as to the particular issue upon which he secured a new trial. Inasmuch, therefore, as appellant has only been convicted of manslaughter, we might dispose of this question by holding that, even if there was error in the ruling, appellant has not been prejudiced thereby. But the question sought to be raised is one of grave importance in the administration of criminal law, and we prefer to consider and decide it. Article 1, § 17, of the Constitution, provides: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life and liberty." This is a great right guarantied by the Constitution, but, like other rights, may be waived by the accused. State v. Faile, 43 S. C. 57, 20 S. E. 798. The real question is as to the extent to which the accused Is to be held to have waived this right when he procures a new trial on conviction for manslaughter on indictment for murder. As stated above, the authorities generally hold that the waiver certainly extends so far as to permit a new trial on the same Indictment for the offense of which the accused was convicted. Our Investigation discloses that the greater number of authorities in other states take the view that a verdict of manslaughter is an acquittal of murder, and that a new trial granted on motion of the accused upon conviction of the lesser offense Is not to be considered as a new trial for the greater offense of which he was acquitted, as the accused should not be deemed to have waived his right, in so far as he was acquitted. Of the cases taking this view we cite: State v. Hornsby (La.) 41 Am. Dec. 314; Hurt v. State (Miss.) 59 Am. Dec. 225; People v Gilmore (Cal.) 60 Am. Dec. 620. But see People v. Reefer, 65 Cal. 232, 3 Pac. 818, said to be in conflict; Jones v. State (Tex.) 62 Am. Dec. 550; State v. Martin (Wis.) 11 Am. Bep. 567; Johnson v. State (Ark.) 21 Am. Rep. 154; State v. Cross (W. Va.) 29 S. E. 527. There are states which lave statutes providing that "the granting of a new trial places the parties in the same position as if no trial had been had, " and in such states it is held that the accused waives the constitutional safeguard against being twice put in jeopardy, and that he may be tried again for murder when he procures a new trial on conviction of manslaughter. State v. McCord (Kan.) 12 Am. Rep. 469; Veatch v. State, 60 Ind. 291; People v. Palmer, 109 N. Y. 413, 17 N. E. 213, 4 Am. St Rep. 477; Commonwealth v. Arnold (Ky.) 4 Am. St. Rep. 114.

If the constitutional provision (article 1, § 17) guaranties that a conviction for manslaughter is an acquittal for murder, even though the conviction be set aside upon the accused's own...