State v. May

• Decision Date: 03 January 1896
• Citation: 23 S.E. 513,45 S.C. 509
• Parties: STATE v. MAY (three cases).
• Court: South Carolina Supreme Court

23 S.E. 513

45 S.C. 509

STATE v. MAY (three cases).

Supreme Court of South Carolina

January 3, 1896

Appeal from common pleas circuit court of York county; W. C. Benet, Judge.

Three indictments for unlawfully selling liquor were found against John May. From an order quashing one and amending the others, the state appeals. Order modified. J. K. Henry, for the State.

Hart & Hart, for respondent.

GARY, J.

The above caption embraces three cases called for trial at the April term of the court of general sessions for the county and state aforesaid. A copy of the indictment, in which J. B. Smith is the prosecuting witness, will be set out in the report of the case. The other indictments are similar, except as to dates, and names of persons to whom the sales were alleged to have been made. On the call of the cases for trial, defendant made a motion to quash the indictment in which J. B. Smith is the prosecuting witness, and to amend the other indictments in the particulars and on the grounds stated in the order of his honor, Judge Benet, which will also be set out in the report of the case. The solicitor moved to amend the said indictment, by inserting the word "five" after the word "ninety," which was refused by the court. From this order the solicitor appealed, upon exceptions which, together with the grounds upon which the respondent asks this court to sustain said order, will be incorporated in the report of the case.

Section 57 of the criminal statutes of South Carolina provides that: "If there be any defect in form in any indictment it shall be competent for the court before which the case is tried to amend the said indictment: provided, such amendment does not change the nature of the offense charged," etc. It will be observed from an inspection of the indictment that the date is mentioned as "on the fifth day of January in the year of our Lord one thousand eight hundred and ninety ___"; thus showing that it was incomplete, and that it was a mere clerical error in failing to fill out the blank. Even, however, if the indictment had set forth the date as "eighteen hundred and ninety," still the amendment should have been allowed. State v. Ray, Rice, 1.

We understand that the solicitor does not insist upon the second and third exceptions. They, however, could not be sustained. It is the judgment of this court that the order of the circuit court be modified in the particular herein mentioned.