State v. Horton

• Decision Date: 22 August 1946
• Docket Number: 15869.
• Citation: 39 S.E.2d 222,209 S.C. 151
• Parties: STATE v. HORTON.
• Court: South Carolina Supreme Court

39 S.E.2d 222

209 S.C. 151

STATE v. HORTON.

No. 15869.

Supreme Court of South Carolina

August 22, 1946

R. E. Babb and O. L. Long, both of Laurens, for appellant.

Hugh Beasley, Sol., of Greenwood, and Blackwell Sullivan & Wilson, of Laurens, for respondent.

FISHBURNE Justice.

The appeal brings up for review a verdict and judgment rendered in the circuit court in which Robert S. Horton was adjudged guilty of carnal knowledge of a woman child over the age of fourteen years and under the age of sixteen years. Upon conviction, his punishment was fixed at two years in the penitentiary.

The first assignment of error to be considered has to do with the form of the indictment. It is contended that the court erred in refusing to quash the indictment on the ground that two offenses were improperly joined in the first count.

The case was first called for trial before Judge Robert Martin and a jury, in 1944, and resulted in a mistrial. Before the jury was empaneled the appellant made a motion to quash the indictment upon the ground that two offenses were improperly joined in the same count, one charging common law rape, under Section 1109 of the Code, and the other charging carnal knowledge of a woman child under Section 1111. The additional ground was advanced that the counts were so badly jumbled that the appellant was not informed of the nature and cause of the accusations made against him, in violation of his constitutional rights. Article I, Section 18. The court held that the first count of the indictment charged two offenses as contended by appellant--that is, the charge of common law rape and the charge of statutory rape under Section 1111; hence there was a misjoinder. The solicitor thereupon elected to go to trial up the charge of statutory rape. It was further held that the allegations of the indictment relating to common law rape might be stricken from the indictment as surplusage, and upon the suggestion of appellant this was done.

The case was again called for trial, in September, 1945, before Judge Grimball and a jury, resulting in a conviction.

Appellant upon the second trial, raised the same objections to the indictment which were made on the first trial, with the additional ground that the court erred in allowing the indictment to be amended and altered so as to change the nature of the offense charged, without re-submitting it to the grand jury. These objections were overruled.

The indictment, omitting formal parts, reads as follows:

'That Robert S. Horton, late of the county and state aforesaid, on the 7th day of May, in the year of our Lord One thousand nine hundred and forty three, with force and arms, at Laurens Court House, in the county and state aforesaid, in and upon one Betty Joe Boyd, a woman child under the age of sixteen years, in the peace of God and of the said State, then and there being, (violently) and feloniously did make an assault and her the said Betty Joe Boyd, a woman child under the age of sixteen years, then and there (violently and against her will) feloniously did (ravish and) carnally know, against the form of the statute in such case made and provided, and against the peace and dignity of the State.'

The words which are in parenthesis in the above quotation were stricken out of the indictment by the solicitor by permission of the court, thereby removing from the first count all allegations relating to force or common law rape.

In our opinion, the indictment as originally drawn was fairly subject to the objection made by the appellant--that is, that it charged two offenses: (1) Common law rape, under Section 1109, and (2) statutory rape--carnally knowing a woman child under sixteen years of age, in violation of Section 1111 of the Code. The trial judge so held; whereupon the solicitor elected, as he had the right to do, to go to trial upon that count charging statutory rape.

Section 1005 of the Code provides that if there be any defect in form in any indictment, it shall be competent for the court before whom the case is tried to amend the indictment provided such amendment does not change the nature of the offense charged.

By the action of the trial judge permitting the solicitor to strike out the parenthetic words as surplusage, we are unable to see how ...