State v. Jenkins

• Decision Date: 15 January 1884
• Citation: 20 S.C. 351
• Parties: STATE v. JENKINS.
• Court: South Carolina Supreme Court

20 S.C. 351

STATE v. JENKINS.

Supreme Court of South Carolina.

January 15, 1884

1. A person indicted for arson and acquitted by direction of the judge, as the offense did not constitute the crime of arson was, afterwards, for this same act of burning, put upon his trial for the statutory offense of burning an untenanted house, and he interposed the plea of autrefois acquit. Held , that this plea was properly overruled.

2. An indictment charged an offense to have been committed at a future day; after the jury was charged, the error being discovered, the indictment was quashed, and a new and correct one found upon which the defendant was put upon his trial. Held , that a plea of autrefois acquit was properly overruled.

3. The testimony in all cases must correspond with the allegations and especially in criminal cases.

Before WITHERSPOON, J., Anderson, June, 1883.

The opinion makes a full statement of the case.

Mr. Columbus Wardlaw , for appellant.

A person cannot be tried twice for the same offense. It is forbidden by the common law, the Federal and State constitutions. Were the offenses the same? The question turns upon the meaning of the word " offense." " Offense" means any violation of law. Mr. Justice McLean uses the words " same act." 18 Wall. 178; 1 Mart. & Y. 122; 1 Green. 375; 15 S. C. 370.

Mr. J B. Moore , same side, cited 1 Bailey 651; 2 Treadw. 517; 4 McCord 254; 2 Nott & M. 15; 18 Wall. 163.

Mr. Solicitor Orr , contra.

OPINION

MR CHIEF JUSTICE SIMPSON.

The appellant, Wesley Jenkins, was tried and convicted at the June Term, 1883, of the Court of Sessions for Anderson county, of burning an untenanted house. To the indictment, he plead autrefois acquit , which being overruled, upon trial he was convicted and sentenced, the sentence being " confinement in the penitentiary for two years at hard labor."

The appeal raises the single question whether his plea of autrefois acquit should have been sustained. To understand this question, the facts must be stated. It appears that the appellant was indicted and tried at the February Term, 1883, of the court for Anderson, for arson, the indictment charging him with having burned a house within two hundred yards and appurtenant to the dwelling-house of one Jesse J. Dobbins, & c. Upon this trial, it being evident that the house burned was not appurtenant to a dwelling-house, under instructions from the court, the jury returned a verdict of not guilty.

At the next term of the court, to wit, in June, 1883, he was again indicted, this time under the act for " Burning an untenanted house." After the jury had been impaneled, but before any testimony was adduced, the solicitor discovered that the accused was charged with having committed the offense on December 19th, 1883, (a future time,) instead of December 19th, 1882, (the real time,) whereupon he moved to quash the indictment, which was ordered against the objection of appellant's counsel, who claimed that his client was entitled to a verdict. The indictment, however, was quashed, and, the grand jury not having been discharged, a new indictment charging the proper time, and that the property belonged to J. Jesse Dobbins instead of Jesse J., as in the first, was found, upon which the accused was tried, and, as above stated, convicted and sentenced.

The question is, Was the offense charged in this last indictment the same as in either of the other two? If so, the appeal should prevail, as there can be no doubt that in such case he could successfully invoke for his protection the principle that no person shall for the same offense be twice put in jeopardy, or,...