State v. Griggs
| Decision Date | 02 August 1937 |
| Docket Number | 14522. |
| Citation | 192 S.E. 360,184 S.C. 304 |
| Parties | STATE v. GRIGGS. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Darlington County; E C. Dennis, Judge.
Ronald Griggs was convicted of murder, and he appeals.
Reversed and remanded for new trial.
J. K Owens and J. J. Evans, both of Bennettsville, for appellant.
Sidney S. Tison, Sol., of Bennettsville, and L. M. Lawson, of Darlington, for respondent.
The indictment in this case, on which the grand jury found a "True Bill," and on which appellant was tried, in the first count, charged that one Henry Jacobs did commit murder, in that on November 13, 1936, with a pistol he did shoot, strike, penetrate, and mortally wound one Oscar L Garland, from which mortal wound the said Oscar L. Garland then and there died; the second count charges that the appellant, on November 13, 1936, was an accessory thereto before the fact, in that appellant incited, moved, procured, aided, counseled, hired, and commanded the said Henry Jacobs to do and commit the felony and murder in manner and form aforesaid; the third count charges that appellant, well knowing Henry Jacobs to have done and committed the said felony and murder in form aforesaid, him the said Jacobs did feloniously receive, harbor, maintain, and aid to escape; the fourth count charges that appellant did commit murder in that on November 13, 1936, with a pistol he did shoot, strike, penetrate, and mortally wound the said Oscar L. Garland, from which mortal wound the said Oscar L. Garland then and there died; the fifth count charges that Henry Jacobs, well knowing appellant to have done and committed the felony and murder in form aforesaid, him the said appellant did feloniously receive, harbor, maintain, and aid to escape; the sixth count charges that Henry Jacobs and appellant on November 13, 1936, in and upon one Oscar L. Garland, feloniously, willfully and of his malice aforethought did make an assault; and that the said Henry Jacobs and appellant (Ronald Griggs) him the said Oscar L. Garland then and there feloniously, willfully, and of his malice aforethought, with a pistol, did shoot, strike, penetrate, and wound, giving to the said Oscar L. Garland one mortal wound of which he then and there died; and the seventh count charges appellant with carrying a concealed weapon, to wit, a pistol.
Upon the call of the case for trial, appellant moved for a continuance, which motion was refused. Thereupon counsel representing Henry Jacobs moved for a severance, and, the solicitor consenting thereto, the motion was granted, the trial judge stating:
Before arraignment and before pleading, appellant demurred to the indictment and moved to quash the same on the ground that there was a misjoinder of the parties defendant, in that the defendant, Jacobs, is charged in the first count with murder; in the second count appellant is charged with accessory before the fact; in the third count appellant is charged as an accessory after the fact; in the fourth count appellant is charged with murder; in the fifth count Jacobs is charged as an accessory before the fact; and in the sixth count Jacobs is charged as an accessory after the fact; and in each and every instance the allegations for the killing of one individual with one and the same pistol. It was the position of appellant that two or more persons cannot be joined in the same indictment, unless engaged jointly in the commission of the same offense, and that the first count and the fourth count in the indictment charge an offense, and the same offense, as having been committed by each of the defendants separately and not while engaged in a common or joint enterprise, and each of the defendants in the separate counts is charged independently of having committed the offense; that the indictment alleges an offense having been committed by one or the other of the defendants; and that the indictment should charge joint and common action on the part of both defendants, or it should charge one of the defendants as a principal, and under the allegations of the indictment, the State undertakes and does charge one or the other of the defendants as principal.
The motion to quash and dismiss the indictment was refused, and appellant then asked that the jurors be placed upon their voir dire. The court propounded to the several jurors the usual questions, as to relationship by blood or connection by marriage, to the defendant or the deceased; as to having made up his mind or expressed an opinion as to the guilt or innocence of the accused, and then this question: "Are you opposed to capital punishment?" The trial judge excused those jurors who stated that they were opposed to capital punishment.
The appellant was separately tried on the indictment hereinbefore described, was by the jury convicted of murder, and, after a motion for a new trial was refused, the trial judge imposed sentence in the usual form, fixing the date for electrocution for February 21, 1937.
The appeal is from such trial, and refusal of a new trial, and errors are alleged, generally, on the following grounds: (1) Refusal to grant a continuance; (2) refusal to quash the indictment; (3) alleged election by the trial judge and not the solicitor to try appellant before Jacobs; (4) asking the prospective jurors on their voir dire examination if they were opposed to capital punishment; (5) allowing the coroner to give his opinion as to the cause of the death of the deceased, and remarks of the trial judge concerning the objection to the testimony of the coroner; (6) admitting testimony that the dead man was married and left surviving him children; (7) refusing motion for directed verdict on the first count as to appellant, wherein he was charged with the murder of the deceased, Garland; (8) in the charge to the jury; (9) and (12) failure to tell the jury that one of the verdicts which they could bring in was "Not Guilty," when outlining to them the various verdicts they could render; (10) failing to grant a new trial; and (11) failure of proof of venue.
In the view we take of the case, it will be unnecessary to enter into a discussion of appellant's first exception.
The second ground of appeal attacks the indictment, which is claimed to contain seven counts. As a charge against a principal and an accessory together constitutes but one count (State v. Atkinson, 40 S.C. 363, 18 S.E. 1021, 42 Am.St.Rep. 877), as a matter of law, the number of counts is four; but an indictment, of course, is not good or bad, according to the number of counts, where none, as here, are in the disjunctive. The present indictment charges Griggs with murder, and Jacobs with accessory to such murder before the fact; it also charges Jacobs with the same murder and Griggs as accessory thereto, both before and after the fact, while in another count it charges both with murder and in another count charges Griggs with carrying concealed weapons, the last being mandatory under section 1008 of the Code of 1932, which requires two counts in all murder indictments where a concealed weapon is used.
Quoting from State v. Burbage, 51 S.C. 284, 28 S.E. 937:
There Judge McIver, citing and reviewing the cases on this subject in the State up to that time, clearly showed that inconsistent counts may be included in the same indictment if they grow out of the same transaction, pointed to the repugnancy between two counts in one indictment, one charging burglary in entering a dwelling with intent to steal, another charging larceny; to the inconsistency between two counts, one charging larceny, the other receiving stolen goods, and one a felony and the other a misdemeanor; to the apparent inconsistency in a count for murder and a count for manslaughter, malice being necessary in one, and impossible in the other; and in all of these instances Judge McIver held the indictment was good and proper pleading. To the instance cited may be added the accepted rule whereby in an indictment for murder one may be convicted of involuntary manslaughter. The indictment here contained one more count than in the Burbage Case, but there is no greater inconsistency, and, since the counts all grow out of the same transaction, the indictment is clearly good. In fact, it has the virtue of in one trial (had there been no severance) settling all issues growing out of the one transaction, a practice to be commended, not condemned.
The third exception alleges error, in that, when the motion was made by the attorneys for Jacobs for a...
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