State v. Lark

• Decision Date: 03 July 1902
• Citation: 42 S.E. 175,64 S.C. 350
• Parties: STATE v. LARK.
• Court: South Carolina Supreme Court

42 S.E. 175

64 S.C. 350

STATE v. LARK.

Supreme Court of South Carolina

July 3, 1902

Appeal from general sessions circuit court of Anderson county.

Walter Lark was convicted of manslaughter, and appeals. Affirmed.

M. L Bonham, for appellant. U. X. Gunter, Asst. Atty. Gen., for the State.

JONES J.

The defendant, indicted for murder, was found guilty of manslaughter, and, before sentence was passed, moved in arrest of judgment on these grounds: "(1) Because it appeared on the face of the indictment that the bill was found at a court begun to be holden on the 10th of February 1901, and that the offense was alleged to have been committed on the 11th day of October, 1901; so that it would appear that the bill of indictment was found several months before the offense was committed. (2) Because the indictment alleges 'that the said Walter Lark him, the said Will Harmon then and there, feloniously, willfully, and of his malice aforethought, with a stone or iron hammer did strike,' etc. The use of the disjunctive conjunction 'or,' in the description of the instrument used, making the indictment fatally defective for uncertainty." The motion was overruled, and the defendant was sentenced. The appeal assigns error in refusing to arrest judgment upon the grounds stated.

It appears that the motion in arrest of judgment is based upon objections to the indictment for defect apparent on the face thereof. Section 57, Townsend's Code, provides that "every objection to any indictment for any defect apparent on the face thereof shall be taken by demurrer or on motion to quash such indictment before the jury shall be sworn and not afterwards." The purpose and effect of such legislation are to prevent motions to arrest judgment on grounds based upon defects in indictment apparent on the face thereof. It is true that such grounds were taken by the defendant's counsel by demurrer or motion to quash before the jury were sworn, and the same were overruled; but no exception was taken to the ruling of the court on the demurrer or motion to quash, and, in the absence of such exception, the action of the court in that regard is not properly under review. This is sufficient to require a dismissal of the appeal. We will, however, add some observations in reference to the matters upon which a reversal is sought:

Section 56, Cr. Code, provides: "Every indictment shall be deemed and adjudged sufficient and good in law which, in addition to allegations as to time and place as now required by law, charges the crime substantially in the language of the common law or of the statute prohibiting the same, or so plainly that the nature of the offense charged may be easily understood," etc. Section 60, Cr. Code, provides: "Every indictment for murder shall be deemed and adjudged sufficient and good in law which, in addition to setting forth the time and place, together with a plain statement, divested of all useless phraseology,

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