State v. Jackson

Citation7 S.C. 283
Decision Date18 May 1876
CourtUnited States State Supreme Court of South Carolina

7 S.C. 283


Supreme Court of South Carolina.

May 18, 1876.

Indictment for conspiracy against “A and B” alone. Both appeared and pleaded to the indictment. “B” was put upon trial and “A” used as a witness for the State. After the jury retired a nol. pros. was entered as to “A,” and a verdict of guilty rendered against “B:” Held, That judgment could not be pronounced on the verdict, the effect of the nol. pros. being to leave the indictment as if it charged “B” alone with the conspiracy.

Two or more persons must combine or there can be no conspiracy, and this joint combination must be laid in the indictment or it cannot be sustained.

Where the indictment alleges the joint combination of two, and nol. pros. is entered as to one, the effect of the entry is to leave the indictment as if it charged one alone; and if this be done before verdict of guilty against the other, judgment cannot be pronounced against him.

The State cannot give in evidence declarations made by its own witness out of Court contradictory of his statement on the examination.


This was an indictment against Walter Jackson and Emanuel Fields for conspiracy to cheat and defraud William Smith. The indictment was in the usual form, charging that the defendants “unlawfully did combine, conspire, &c.”

The defendants appeared and pleaded “not guilty.”

At the trial Fields was used by the Solicitor as a witness for the State. After the jury retired and before a verdict was rendered, a nol. pros. was entered as to Fields, and then a verdict of guilty was rendered against Jackson.

Fields having testified to facts tending to shew that the transaction was an innocent one on the part of the defendants, there being no intention on their part to cheat and defraud, the Solicitor was allowed by the Court to examine other witnesses to shew that Fields had previously made statements in reference to the transaction

[7 S.C. 284]

entirely contradictory of those now made by him, so far they related to the intention of the defendants.

Jackson appealed and moved this Court for a new trial on grounds which sufficiently appear, in the opinion of the Court.

Jones, Jones & Mower, Earle & Wells, for appellant:

This was a joint indictment against the appellant and Emanuel Fields. The Solicitor severed and put the appellant on trial and examined Fields and the prosecutor, and then introduced other witnesses to prove that Fields had made statements out of Court different from those made on the trial.

1. The offense charged was a conspiracy, and only two were implicated or indicted, and the case of one of them, Emanuel Fields, was terminated before judgment pronounced, and the termination of the case against one of two conspirators by nolle prosequi or acquittal before judgment is an acquittal of the other. In riot and conspiracy, where one cannot be indicted for an offense committed by himself alone, the acquittal of those charged in the same indictment with him as co-defendant must of course extend to him.-1 Whart. Cr. L., § 431.

It is clear that if the case be thus (by nolle prosequi) withdrawn when on trial, this now operates as an acquittal.-1 Whart. Cr. L., 513.

The application to sever is more especially the right of the defendant, and is...

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