State v. Hill

• Decision Date: 29 June 1883
• Citation: 19 S.C. 435
• Parties: STATE v. HILL.
• Court: South Carolina Supreme Court

19 S.C. 435

STATE

v.HILL.

Supreme Court of South Carolina.

Jun. 29th, 1883.

1. There being no authority for issuing a writ of venire to summon additional jurors, drawn from the tales-box, defects in such a writ furnish no ground for an arrest of judgment.

2. The law does not require the name of the attorney-general or solicitor of the Circuit to be signed to a writ of venire.

3. A writ of venire commencing “State of South Carolina, county of Spartanburg. To the sheriff of Spartanburg county,” &c., is a sufficient compliance with the constitutional requirement, ( Art. IV., § 31,) that “all writs and processes shall run in the name of the State of South Carolina.”^a1

4. A person who steals a horse in another State, and brings it into this State and here converts it to his own use, can be indicted here for larceny.

Before WITHERSPOON, J., Spartanburg, March, 1883.

The presiding judge thus reports the case:

The defendant, Lang Hill, was indicted and convicted for horse stealing. Evidence on the part of the State, the defendant offering no testimony, showed that the defendant, on or about October 10th, 1882, was at the house of one Thomas J. Neely, who lived in Transylvania county, N. C. Defendant was engaged in repairing sewing machines, and was several days at said Neely's and in his neighborhood. Defendant represented to Neely that he had a horse and buggy and some tools on Cane creek, in Henderson county, N. C., and desired to get the use of Neely's horse to go for them. He obtained said horse from Neely and promised to return the same in a week.

Neely received information in a few days that defendant was trying to sell his (Neely's) horse in the town of Hendersonville, N. C. He went in pursuit of his horse, and on the following week found it at the livery stable of one G. D. Carrier, in the town of Spartanburg, S. C. The proof was that Carrier had purchased the horse from defendant, who represented to him that it was his (defendant's) property; that Carrier had paid him a portion of the purchase-money; that the prosecutor, Neely, identified the horse as his, and the defendant admitted that it was the horse of Neely. The defendant was then arrested. The proof was that Cane creek was not in the direction of Hendersonville or of Spartanburg, but in the opposite direction, and towards Asheville, N. C.

The jury found the defendant guilty, and the defendant was sentenced to two years at hard labor in the penitentiary. A motion for new trial was made and argued before me, which I refused because I thought the evidence sustained the verdict. A motion in arrest of judgment was made upon the exceptions presented, which was also refused, because I could see no error in my rulings.

I charged the jury that the defendant was indicted for stealing a horse in Spartanburg county, S. C., and not for stealing a horse in North Carolina, and that if they were satisfied from the circumstances and facts of the case, that when defendant obtained the horse he intended to steal him, or convert it feloniously to his own use, and that the hiring or borrowing was only a pretextto obtain possession, the intent being to steal, and defendant brought the horse to Spartanburg and converted the property feloniously to his own use, and to deprive the owner of the same, it would be larceny. But of all this they must be satisfied beyond a reasonable doubt from the proof. That the question of intent was one for the jury, which they must determine from all the facts and circumstances of the case, and that they were bound to give the benefit of every reasonable doubt which might arise to the defendant. Requests one, two and five were charged as requested.

There was no proof whatever offered tending to show in any way the purpose of defendant to return proceeds of the sale of the horse to the owner, and I therefore declined to charge a supposed case, which is embraced in the third request to charge.

The defendant only challenged three jurors. On the first day of the term I ordered that the names of five persons be drawn from the tales or five-mile-box to fill the deficiency in the number of petit jurors, which was drawn under my direction by the jury commissioner in the presence of the clerk and sheriff, and the said order directed them be “summoned when so drawn forthwith.” I regarded the venire facias for grand and petit jurors as sufficiently regular, and that there was no irregularity in either writ, or in the drawing, summoning, returning or impaneling of the jurors, by which the defendant making objection had been injured, or to which any objection was made or exception taken before the returning of the verdict.

At the trial the defendant presented the following requests to charge:

1. “That unless the horse was taken from Neely with a larcenous intent, then the defendant cannot be convicted of horse stealing.

2. “That if the horse was hired with intent to return him to the owner, and afterwards determined to convert him to his own use, then the defendant cannot be convicted under this indictment.

3. “That if the prisoner sold the horse to Carrier with intent to account for his value to Neely, he cannot be convicted under this indictment.

4. “That if the horse was taken in North Carolina with a felonious intent and brought into this State, he cannot be convicted here of horse stealing.

5. “That the prisoner cannot be convicted under this indictment if the facts show only a breach of trust with fraudulent intent.”

The defendant appealed upon the following grounds:

1. “That his Honor erred in refusing to arrest judgment upon the following grounds: That neither the grand jury, which presented a true bill, nor the petit jury which rendered the verdict herein, was a legal jury; that neither of said juries was drawn, summoned or impaneled according to law in this case: (1). That neither in the original nor additional writs of venire are any names of persons who were to sit as either grand or petit jurors at the present term of this court. (2). That the names of said jurors were not even annexed to said writs of venire. (3). That no one of said writs are or were issued in the name of the attorney-general or of the solicitor of the Circuit. (4). That the original writs of venire contained no proof whatever of the summoning of many of the aforesaid grand or petit jurors. (5). That the said grand or petit jurors were not summoned either by the sheriff or deputy sheriff. (6). That the said writs do not show that they were summoned within the time required by law. (7). That the original writs of venire were not returned to the clerk before the time of opening and holding said court. (8). That the record shows no proof that any of said writs of venire were ever served upon the jury commissioners. (9). That no one of said writs of venire runs in the name of the State of South Carolina. (10). That neither of the writs of venire for grand jury, nor the writ of venire for the original petit jury, were issued under the seal of this court. (11). That the writ of venire issued for additional jurors in term time, and on the first day of the present term of this court, was not issued under the seal of the court. (12). That the additional jurors were not drawn as required by sections 2631 and 2637 of the general statutes. (13). That E. W. Cummings, one of the jurors who tried the case, was drawn as an additional juror.

2. “Because his Honor, the presiding judge, erred in not charging as requested, ‘That if the horse was taken in North Carolina with a felonious intent and brought into this State, he cannot be convicted here of horse stealing.’

3. “Because his Honor erred in charging the jury that if they believed that when the defendant borrowed the horse in North Carolina he intended to commit larceny, and afterwards brought the horse into South Carolina and sold him, the defendant could be convicted in South Carolina under the indictment.

4. “Because his Honor erred in not granting a new trial, as asked, no larceny having been proved, but only a breach of trust.”

Messrs. Bobo & Carlisle, for appellant, on the motion in arrest of judgment, cited Const. of S. C., Art. IV., § 31; 14 Rich. 49;6 Binn. 179;Mill. Comp. 179; 1 Rich. 188; 2 Spears 211; 11 S. C. 321;Gen. Stat. (1882), §§ 742, 2243, 2246; 3 Strobh. 33; Circuit Court Rules, XXIII. The taking being in North Carolina, and the jury having found that the taking was with felonious intent, defendant cannot be convicted in South Carolina for horse stealing. Const. U. S., Art. III., § 2, Art. IV., § 2, VI. Amend.;9 Rich. 113;Whart. Confl. L., § 322; Rorer Inter-State Law, 234; 3 Gray 434; 2 Johns. 477, 479.

Mr. Solicitor Duncan, contra.

The opinion of the court was delivered by

MR. JUSTICE MCIVER.

The defendant having been convicted under an indictment for horse stealing, moves in arrest of judgment upon the ground of sundry alleged defects in the writs of venire, by which the jurors were summoned, and also for a new trial upon the grounds of certain alleged errors in the charge of the Circuit judge.

The grounds relied upon in arrest of judgment may be divided into two classes: 1. Those which rest upon alleged defects in the writ of venire, issued to summon five additional jurors, drawn from the tales-box to supply a deficiency in the number originally summoned. 2. Those which allege defects in the original writs of venire under which the grand and petit jurors for the term were summoned. Inasmuch as there was not only no necessity, but also no authority, for issuing a writ of venire to summon the five additional jurors drawn from the tales-box, (State v. Williams, 2 Hill 381;State v. Stephens, 11 S. C. 319,) the several objections urged to this writ require no further notice.

The principal objections urged to the original writs of venire are: 1. That they are not signed by the attorney-general or solicitor of the Circuit. 2. That they do not run in the name of the State of South Carolina; the...