State v. Gowan

• Decision Date: 04 November 1935
• Docket Number: 14157.
• Parties: STATE v. GOWAN.
• Court: South Carolina Supreme Court

182 S.E. 159

178 S.C. 78

STATE v. GOWAN.

No. 14157.

Supreme Court of South Carolina

November 4, 1935

Appeal from Common Pleas Circuit Court of Greenville County; C. C Featherstone, Judge.

Walter Gowan was convicted of manslaughter, and he appeals.

Affirmed.

Sam J Nicholls and Donald Russell, both of Spartanburg, and C Granville Wyche, of Greenville, for appellant.

J. G Leatherwood, Sol., and D. B. Leatherwood, both of Greenville, for the State.

FISHBURNE Justice.

At the March 1934 term of the court of general sessions for Greenville county, the grand jury returned an indictment against the appellant Walter Gowan, and Milton Floyd and Dacre Walden, charging them with the murder of Ibra Burns. The indictment alleged that the mortal wound was inflicted upon the deceased in the county of Greenville on January 21, 1934, and as a result of said mortal wound he "did then and there die."

On October 30, 1934, at the regular term of the court of general sessions, the appellant, Walter Gowan, and Milton Floyd were duly arraigned; Dacre Walden having in the meantime died. The defendants entered a plea of not guilty. A jury was duly impaneled and sworn, and the trial of the case entered upon. The state offered as its first witness Dr. A. J. Jervey, of Tryon, N. C., and during the course of his testimony it developed that the deceased actually died in Tryon, N. C., although the indictment alleged that the defendant gave to the deceased a mortal wound in Greenville county, as the result of which he "did then and there die."

The solicitor immediately called to the attention of the presiding judge, Hon. Wm. H. Grimball, the fact that there was a variance in the allegations of the indictment and the proof adduced as to the place of death. A colloquy thereupon ensued between the trial judge, the solicitor, and the attorneys for the appellant, in which the solicitor stated that he wished to proceed regularly, and expressed his opinion that if the trial proceeded to a conclusion, and the attorneys for the appellant failed to make a motion with reference to the variance, they would thereby waive it; and the solicitor concluded by announcing that the state was ready to go on with the trial. Whereupon the attorneys for the appellant moved the court to direct a verdict of not guilty in favor of the defendants, first, on the ground that there was not sufficient evidence to sustain the charge in the indictment; and, second, upon the further ground that there was a variance in the proof and the charge in the indictment. The solicitor objected to the making of the first motion at that stage of the trial, but indicated that he would not oppose the granting of the motion made on the ground of material variance, and stated that if the latter motion were granted he would hand out another indictment. The trial judge thereupon granted the motion of the defense on their second ground, and directed a verdict, to be indorsed on the indictment, in these words, "Not guilty by direction of the Court," which verdict was signed by the foreman of the jury.

Immediately upon the publication of the verdict of the jury the Solicitor handed out another indictment against the appellant, Walter Gowan, and Milton Floyd, which is identical with the first indictment, except that in the second indictment it was charged that: "Ibra Burns did, on the same day, and in the town of Tryon, County of Polk, and State of North Carolina, die."

The defendants were again arrested, admitted to bail, and the case was continued until the next term of court.

On the 18th day of March, 1935, the case was called for trial upon the second indictment. A nolle prosequi was entered by the solicitor as to the defendant Milton Floyd, and the trial of the case proceeded against the appellant, Walter Gowan, as the sole defendant. Upon being arraigned on the second indictment, the appellant interposed a plea of former jeopardy, and also a plea of autrefois acquit, as a bar to the prosecution. To sustain these two pleas the appellant offered in evidence the first indictment and the verdict of the jury thereon, together with the record of the first trial. After hearing arguments by counsel, his honor, Judge C. C. Featherstone, the trial judge, overruled both the plea of former jeopardy and the plea of autrefois acquit. The appellant then entered a plea of not guilty. A jury was then impaneled and sworn, and the case proceeded to trial, resulting in a verdict of manslaughter. Exceptions were duly noted to the order of the presiding judge overruling the plea of former jeopardy and the plea of autrefois acquit. No motion was made either for a directed verdict or for a new trial.

The appellant has appealed to this court upon three exceptions, with various subheads, but classified by him as follows:

"(1) Did the Court err in overruling appellant's plea of former jeopardy? (Exception I.)

(2) Did the Court err in overruling appellant's plea of autrefois acquit? (Exception II.)

(3) Did the Court err in refusing to charge appellant's fifteenth request to charge? (Exception III.)"

We now consider the first question made.

It is the contention of the appellant under this exception, in order to sustain his plea of former jeopardy, that the record shows that he had been placed upon trial upon a valid indictment, before a court of competent jurisdiction, after he was arraigned and pleaded to the indictment, and a competent jury had been impaneled and sworn; and that he was entitled to a verdict of not guilty under the first indictment for lack of evidence; and, further, that the court could not deprive him of the plea of former jeopardy by ordering a verdict of not guilty upon the ground of variance only.

We are unable to agree with the contention of the appellant that he was placed in jeopardy upon the first trial of this case. It is obviously clear from the record that his motion for a directed verdict, made upon the ground that there was a lack of evidence to sustain the charge in the indictment, was prematurely made. This motion was evidently predicated upon the theory that the state had closed its evidence in chief. It could have been made upon no other theory. The solicitor made no motion, but distinctly and specifically stated, as appears from the record, that he desired to proceed with the trial, and expressed his belief that if the appellant's counsel made no motion for an acquittal on the ground of variance, they would be deemed in his opinion to have waived any objection to the indictment.

There is no suggestion that the state's case was closed at the time the motion was made, and the only reasonable conclusion to draw from the colloquy which took place between the court, the solicitor, and appellant's attorneys is that the solicitor intended to proceed with the trial of the case and the introduction of evidence. Under this state of facts we are satisfied that appellant's motion for a directed verdict on the ground of lack of evidence was prematurely made, as stated. This being true it could not have been held that he was in jeopardy. The trial judge committed no reversible error in refusing to direct a verdict of not guilty for lack of evidence under the circumstances related.

Also, under this question (exception I), the appellant assails section 998 of the 1932 Code as being unconstitutional, in that it violates article 1, section 17 of the Constitution of South Carolina 1895, which provides that: "No person shall * * * be subject for the same offense to be twice put in jeopardy of life or liberty."

The language of section 998 above referred to is as follows "If a person, on...