State v. Jackson

Decision Date18 May 1876
Citation7 S.C. 283
CourtSouth Carolina Supreme Court

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 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 granted only upon strong showing.-1 Bishop on Criminal Procedure, §§ 1018, 1019; State vs McLenden , 5 Strob. 85.

The case from 68 Eng. C. L., 148, shows that the defendant pleaded guilty, and no force, therefore, can be brought to this case from it. In the case of The King vs. Cooke , (16 Eng. C. L., 316,) four were indicted, together with divers other persons unknown. The jury found that the defendant was guilty of conspiracy with his brother, Richard Stafford Cooke, who had pleaded over. A motion in arrest of judgment was made, on the ground that the verdict showed a conviction of conspiracy with one not convicted . Abbott, C. J., and Bailey and Holroyd, Justices, overruled the motion on the express ground that the verdict did not show that he " did not conspire with the persons unknown." The necessary inference from this decision is, inevitably, that if the verdict had been that he conspired with Richard Stafford Cooke alone , then the judgment would have been arrested. In the case before the Court, one of two alleged conspirators is used as a witness against the other and swears that the act was done to decide a wager merely. Fields cannot be tried. Can the verdict against Jackson be sustained?

2. Emanuel Fields was improperly allowed to testify, because he was a co-defendant with Jackson, and had neither been acquitted nor a nolle prosequi as to him entered until after he had testified and the jury had retired. One of several persons indicted, although he has pleaded and defended separately, is not a competent witness for his co-defendant unless immediately acquitted by a jury or a nolle prosequi entered, and the same rule applies to accessories. Whether the trial be joint or separate, the rule is the same.-1 Wharton's Cr. L., § 790.

In an indictment against several, where the offense is such that it may have been committed by several, they are not of right entitled to be tried separately, but are to be tried in that manner. When the indictment includes several defendants, one of them cannot regularly become a witness for the others.-3 Whart. Cr. L., 3196.

Respectable authority has settled that in no case where two or more persons are jointly charged with an offense shall one be a witness for the other, whether jointly or separately tried, at least until the party offered as a witness was either previously acquitted or convicted. And even this last qualification to the general rule has been doubted, and the position to the full extent contended for, that a party to the record cannot, in any event, be received as a witness for his associates in accusation.-3 Whart. Cr. L., 3193. These propositions of law have been somewhat modified by our own statutes, and such witnesses are competent as witnesses for the defense, but they are not compellable to testify.-See also 1 Greenl. on Ev., § 407. Conspirators may be tried alone in two cases-first, where one of two dies; and, secondly, where only one appears.-1 Bish. on Cr. Pro., § 1022.

3. The State has no right to impeach her own witness by proving that he has made different statements out of Court, or by urging by argument that he should not be believed.- Quinn vs. State , 14 Md. 589; 2 Phil. Ev., Ch. X, § 4; Roscoe Cr. Ev., 67.

The testimony of Emanuel Fields must be taken as a whole or it must be entirely rejected. The Solicitor has no right to elect to take a part of his testimony as true and reject the remainder as false. If it be taken as entirely true, then there is no criminal offense proven. If it be entirely rejected, then also is no criminal offense proven.

Blythe , Solicitor, contra:

The appellant in this case was indicted, in connection with one Emanuel Fields, for conspiracy to defraud. On motion of the Solicitor, the cases were severed, and appellant only put upon his trial. He was convicted and sentenced to ten years in the Penitentiary.

1. As to the first ground in arrest of judgment: The entering a nolle prosequi does not terminate the case.- State vs. Haskell , 3 Hill 75; State vs. Howard , 15 Rich. 274; 1 Chitty's Crim. Law, 479, and cases there cited; 2 Russell on Crimes, 691. One of two conspirators may be convicted without reference to the guilt of the one not on trial.- King vs. Cooke , 16 Eng. Com. Law, 816. The defendant has no right to object to discontinuance as to a co-conspirator.-68 Eng. Com. Law, 148.

2. As to the second ground in arrest of judgment, the witness was not on trial; the presiding Judge cautioned him that he was not bound to criminate himself, and, he having testified under such circumstances, appellant has no right to complain.

3. The witness, Emanuel Fields, though called by the State, was unfriendly, and the State had a right to point out discrepancies in his testimony.-Ros. Crim. Ev., pp. __.

4. As to the sufficiency of the indictment: It was the duty of the defendant to show in what particular it was defective. " The Court is not bound to inquire of the errors if the party does not show them." -Back. Abr., 101.

But the indictment was sufficient.-1 Bishop Crim. Procedure, 516; 2 do. 206 to 220, inclusive; 2 Rus. on Crimes, 690, et sequitur .

6. As to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT