State v. Gillis

• Decision Date: 24 February 1906
• Citation: 53 S.E. 487,73 S.C. 318
• Parties: STATE v. GILLIS.
• Court: South Carolina Supreme Court

53 S.E. 487

73 S.C. 318

STATE v. GILLIS.

Supreme Court of South Carolina

February 24, 1906

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 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. Keefer, 65 Cal. 232, 3 P. 818, said to be in conflict; Jones v. State (Tex.) 62 Am. Dec. 550; State v. Martin (Wis.) 11 Am. Rep. 567; Johnson v. State (Ark.) 21 Am. Rep. 154; State v. Cross (W. Va.) 29 S.E. 527. There are states which have 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 motion, it is rather difficult to see how a statute providing that "the granting of a new trial places parties in the same position as if no trial had been had" could be valid to annul the constitutional right. If it be so that such statutes are valid and effective in enlarging the effect of the accused's waiver involved in procuring a new trial, then the same effect should follow when the decisions of the judicial department establish a like rule, as in both cases the question is the effect of a voluntary act of the accused proceeding under the rules of law. In the case of State v. Commissioners, 3 Hill, 239, the court held that, when a new trial is ordered at the instance of the defendants, upon a conviction on one of the counts in an indictment, the case stands as though it had never been tried, and that defendants may be tried anew on both counts. The court said: "The defendants were found guilty only on one count, and upon appeal the verdict was set aside and a new trial ordered. The verdict was set aside in favor of, and at the instance of, the defendants, who were found guilty. There is nothing in the record that could avail them by way of plea in bar to another prosecution. If the verdict of guilty had remained, it would have protected them, perhaps from another indictment for the same offense. As long as the verdict of guilty remained on the record there was a finding, but what proceeding is there now on it? I consider all the proceedings on the indictment, since the finding of the grand jury, to be set aside; and set aside at the instance, and for the benefit, of the defendants. The case stands as though it never had been tried. The defendants contended that a verdict of guilty on one count led to the conclusion that they were acquitted on the other; that is, that omitting to find on one count and finding on the other is an exclusion of guilt to the extent not passed on by the jury. Such inference could not have been fairly drawn from what was apparent on the record; and the inference cannot be drawn when all the proceedings on the record are obliterated." The rule declared above was recognized and enforced in State v. McGee, 55 S.C. 247, 33 S.E. 353, 74 Am. St. Rep. 741, and the case was remanded for a new trial on all the counts in the indictment, notwithstanding the defendant had been convicted on the first and third counts, and in legal effect acquitted on the second; but, a new trial having been granted on his motion, the effect was to remove the inference of acquittal on the second count. It is true this rule was applied as to offenses not capital, but the constitutional...