State v. Green

• Decision Date: 02 February 1874
• Parties: STATE v. GREEN.
• Court: South Carolina Supreme Court

5 S.C. 65

STATE v. GREEN.

Supreme Court of South Carolina.

February 2, 1874

Indictment under the Act declaring a fraudulent breach of trust to be larceny, charged the trust to consist in safely keeping certain lumber of A, and the proof was that it consisted in running a mill by sawing lumber on A's place and shipping it to market for sale. Variance held fatal.

The Constitution of the State providing that " Judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law; " it is error for a Judge to state to the jury his conclusion upon a question of fact, though he may review the evidence and present the different views that may be taken of it.

IN THE CRIMINAL COURT, CHARLESTON, APRIL TERM, 1872.

Indictment against Tappin G. Green under the Act of 1866, (13 Stat. 406, § 6,) providing that any person committing a breach of trust, with a fraudulent intention, shall be held guilty of larceny. The indictment charged that the defendant " being entrusted by one Michael O'Dowd with" certain lumber, & c., " upon a trust," &amp c., that he " would safely keep the said lumber," & c., did, & c. The proof, as to the trust, was that the defendant was employed by Michael O'Dowd as his overseer on two plantations, and that it was part of defendant's " duty to run a mill upon the lower of the two plantations, by sawing lumber cut on the place and shipping it to market for sale." The jury found the defendant guilty, and, after sentence, he appealed, having before sentence, moved in arrest of judgment, and for a new trial.

The rest of the case will be understood from the opinion of the Court.

Knowlton , for appellant.

Buttz , Solicitor, with whom was O'Connor , contra.

OPINION

MOSES C. J.

It is not necessary to review all the grounds submitted, both in arrest of judgment and for a new trial, for among the many presented there are at least two in regard to which no difference of opinion can exist. Nor is it necessary, therefore, to enquire whether the form of the indictment is sufficient, as averring all the circumstances which are essential to constitute and express the offense designed by the Act.

A recognized principle pervades the whole system of pleading both civil and criminal, and is applied with unvarying precision to the latter, where something more than the mere right of property is involved. A criminal conviction subjects the offender to punishment in his person, even affecting life itself. Every safeguard which the law has provided for his defense, whether to be found in statutory enactment, or binding on the Court from long established precedents, originating in judicial decisions, the defendant in the Court of Sessions has the right to invoke in his behalf. It is not necessary to refer to authority to show that one,...