State v. Mcgill

• Citation: 3 S.E.2d 257,191 S.C. 1
• Decision Date: 08 June 1939
• Docket Number: No. 14892.,14892.
• Parties: STATE . v. McGILL.
• Court: United States State Supreme Court of South Carolina

3 S.E.2d 257
191 S.C. 1

STATE .
v.
McGILL.

No. 14892.

Supreme Court of South Carolina.

June 8, 1939.

[3 S.E.2d 258]

Appeal from General Sessions Circuit Court of Greenville County; G. Dewey Oxner, Judge.

Otis McGill was convicted of murder, and he appeals.

Judgment affirmed.

J. D. Lanford, C. Victor Pyle, and C. A. Cappell, all of Greenville, for appellant.

R. T. Ashmore, Sol, and T. A. Wof-ford, both of Greenville, for the State.

STABLER, Chief Justice.

The defendant, Otis McGill, a young white man, was indicted and tried for murder at the May, 1938, term of the Court of General Sessions for Greenville County. He was found guilty as charged and sentenced to die by electrocution. His appeal to this Court, as stated and argued by his counsel, presents the following questions for decision:

"1. Was there error in amending the indictment by changing the name of the deceased; in refusing the motion to quash the indictment; and in forcing the defendant to trial on such amended indictment?

"2. Were the rights of the defendant prejudiced by the manner, of cross examination of the defendant by the solicitor?

"3. Were the rights of the defendant invaded and prejudiced by the arguments of associate counsel for the State and the Solicitor, in their references to him and to his acts?

"4. Was the right of the defendant to a fair and impartial trial invaded and prejudiced by the action of the Clerk of Court in passing a series of notes to the Solicitor in the presence and sight of the jury?

"5. Did his Honor, the trial Judge, err in his charge to the jury upon the test of insanity in this State?"

These questions are fairly raised by the exceptions and will be considered in the order named.

First. The indictment as found by the grand jury charged the defendant with having killed and murdered one A. P. Southern. Upon the call of the case for trial, but before arraignment of the accused, the solicitor moved the Court to

[3 S.E.2d 259]

be permitted to amend the indictment so as to allege the true and correct name of the deceased to be A. P. Southerlin. Counsel for the defendant objected on various grounds, but the trial Judge allowed the amendment for the reason, as stated by him, that its effect was merely to correct the wrong spelling of the name of the person killed. The appellant contends that this was error; that the name of the deceased is a vital and material allegation of the indictment, and cannot be corrected as was here attempted to be done.

Section 1005 of the Code of 1932 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. * * * " In State v. Blackstone, 113 S.C. 528, 101 S.E. 845, 846, an indictment charging violation of the prohibition law was amended upon the call of'the case for trial, by inserting therein the true and correct name of the accused. This Court held on appeal that what is now Section 1005 of the Code permitted the amendment as it did "not change the nature of the offense."

The exact question here presented, whether an amendment of an indictment may properly be allowed for the correction of a misnomer as to the name of the deceased, has not been passed upon by this Court. No good reason appears, however, why the holding of the Court in the Blackstone case, to wit, that an amendment is permissible to correct the name of the accused, should not be applied with regard to the deceased. Here, as in the Blackstone case, the amendment "does not change the nature of the offense charged." There was no change in the identity of the victim of the homicide, but only in the name. The error being merely a matter of form, therefore, and not one of substance, the amendment was clearly proper under Section 1005 of the Code.

This view is in accord with the decisions of other jurisdictions. In 7 A.L.R. 1525, the annotator makes the following statement: "Under statutory authority to amend in matter of form, it is held that the Court may properly allow the amendment of an indictment in correction of a misnomer as to the name of the victim of a homicide, such error being considered a defect in form only. Distinction is to be made between a change in the name and a change in the identity of the victim, the latter being a matter of substance, and not the subject of amendment"--citing cases. See also 68 A.L.R. 929.

Counsel for the appellant cite the following cases in support of their contention: State v. Coleman, 17 S.C. 473; State v. Blakeney, 33 S.C. Ill, 11 S.E. 637; State v. Piatt, 154 S.C. 1, 151 S.E. 206. An examination of these decisions, however, discloses that the holding of the Court in each of them was predicated upon a question of jurisdiction. They are not, therefore, applicable to the...