State v. Mckettrick

• Decision Date: 07 December 1880
• Docket Number: CASE No. 949.
• Citation: 14 S.C. 346
• Parties: STATE v. MCKETTRICK.
• Court: South Carolina Supreme Court

14 S.C. 346

STATE

v.MCKETTRICK.

CASE No. 949.

Supreme Court of South Carolina.

Dec. 7th, 1880.

1. The punishment for both grades of assault and battery being now prescribed by statute, all indictments for this offence must conclude contra formam statuti.

2. Trial justices have exclusive jurisdiction of assaults and batteries which are not of a high and aggravated nature.

3. Courts of General Sessions have exclusive jurisdiction of assaults and batteries of a high and aggravated nature; but to give jurisdiction the aggravation must be set forth in the indictment more specifically than in the technical terms usual at common law.

4. If a trial justice determines that a case of assault and battery brought before him is beyond his jurisdiction, and binds the defendant over to the Court of General Sessions, such determination of the grade of the offence is not conclusive upon the higher court.

Before PRESSLEY, J., Abbeville, September, 1879.

Upon the call of this case at April Term, 1880, of the Supreme Court, it was found that the defendant's sentence had not been pronounced. The hearing of the case was suspended, this court holding that the appeal should be from the sentence. See 13 S. C. 439. At the next succeeding term of the Circuit Court for Abbeville, the sealed sentence was opened and pronounced, and defendant appealed.

The case is fully stated in the opinion.

Mr. W. C. Benet, for appellant.

Simple assault and battery was made a statutory offence by the act of 1870, ( Gen. Stat. 195,) to which the common law must give place. 1 Bl. Com. 89; 14 Rich. 174;2 Brev. 300. Otherwise, there would be two different punishments for the same offence. Where a statute changes the nature and degree, or the punishment of an offence, the indictment should conclude contra formam. 10 S. C. 193;Whart. Prec. 25; Archb. Cr. Pr. & Pl. 290.

Of simple assault and battery courts of trial justices have exclusive jurisdiction under the constitution, (art. I., § 19, and art. IV., § 18,) they being the “other officer authorized by law.” 2 S. C. 404. This is fully shown by the reasoning of the court in State v. Harper, 6 S. C. 464; see, too, 2 S. C. 1, and Dud. 167. The ground upon which this court, in State v. Williams, 13 S. C. 585, overruled State v. Harper, supra, as to petit larceny, sustains this position. In Williams' case it was held that petit larceny was not without the jurisdiction of the Court of General Sessions, because the punishment provided by statute was in excess of that within the competency of trial justices. But in cases of simple assault and battery the special punishment provided is not in excess of the competency of trial justices. Gen. Stat., ch. XXV., §§ 9, 10. Trial justices have exclusive jurisdiction. Apply the severe tests laid down in 14 Rich. 37 and Id. 283, and we have an exclusive jurisdiction declared in the words of article I., section 19: “All offences less than felony, &c., shall be tried summarily by a justice of the peace or other officer authorized by law, on information under oath, without indictment or intervention of a grand jury.” These are clearly exclusive of the Court of General Sessions. See Gen. Stat. 708, § 2. The incongruity-and a striking one it is-which this court met in interpreting the law and the constitution with reference to petit larceny in State v. Williams, does not appear with reference to common assault and battery.

As a case of aggravated assault, which is within the jurisdiction of the Circuit Court, the indictment is fatally defective in not setting out in terms the aggravation. Indictments must be certain to every intent, (1 Chit. Cr. Law 171-2,) both in matter charged and in manner of charging it. Id. 169, 171; Bac. Ab., tit. “Indictment,” G 1; 1 Rich. 184. Not one aggravating fact is set forth. The charge is general and by way of recital. But an aggravated assault is not a simple assault. Gen. Stat. 195; 2 Bish. on C. L., §§ 42-3; Archb. Cr. Pr. & Pl. 926-7; 3 Chit. on Cr. Law 821, et seq.; 1 Bish. on Cr. Proc., §§ 77-88.

Mr. Solicitor Cothran, contra.

When a statute prescribing punishment is simply cumulative, the contra formam statuti may be disregarded. Trial justices clearly have a discretion to say whether a case of assault is within their jurisdiction. In this case the trial justice said he had no jurisdiction, and the sentence of the higher court proves that it was so. His discretion cannot be controlled.

The “other enormities” charged in the indictment sufficiently includes acts of aggravation; dragging by the hair, &c., as in this case.

Assault and battery is a common law offence. The statutes so recognize it, and simply prescribe the punishment.

The opinion of the court was delivered by

SIMPSON, C. J.

In this case, the appellant was put upon trial at the September Term, 1879, of the Court of General Sessions for Abbeville county, under charge of assault and battery.

The indictment was as follows:

“The State of South Carolina, county of Abbeville, to wit:

At a Court of Sessions, begun to be holden in and for the county of Abbeville, in the State of South Carolina, at Abbeville court-house, in the county and state aforesaid, on the first Monday of September, in the year of our Lord one thousand eight hundred and seventy-nine, the jurors of and for the county aforesaid, in the state aforesaid, upon their oaths, present that George McD. McKettrick, on the fourth day of June, in the year of our Lord one thousand eight hundred and seventy-nine, with force and arms, at Abbeville court-house, in the county and state aforesaid, in and upon one Amanda McKettrick, in the peace of God and of said state, then and there being, did make an assault, and the said Amanda McKettrick, then and there, did beat, wound and ill-treat, and other wrongs and enormities to the said Amanda McKettrick then and there did, against the peace and dignity of the same state aforesaid.

And the jurors aforesaid, upon their oaths aforesaid, do further present that the said George McD. McKettrick, on the fifth day of June, in the year of our Lord one thousand eight hundred and seventy-nine, with force and arms, at Abbeville courthouse, in the county and state aforesaid, in and upon Amanda McKettrick, in the peace of God and of this state, then and there being, did make an assault, and the said Amanda McKettrick then and there did beat, wound and ill-treat, and other wrongs and enormities to the said Amanda McKettrick then and there did, against the peace and dignity of the same state aforesaid.

“J. S. COTHRAN, Solicitor.

“True bill-WM. Z. MCGHEE, Foreman.”

Upon this indictment the defendant was found guilty, with recommendation by the jury “to the mercy of the court.” Thereupon, a motion was made in his behalf in arrest of judgment, upon grounds substantially which appear in the grounds of appeal herein.

This motion in arrest of judgment was refused by the Circuit judge, and the defendant has appealed to this court upon the following grounds:

1. Because simple assault and battery, i. e., assault and battery without aggravation, being a statutory offence under the general statutes of South Carolina, it is plain on the face of the indictment that both counts thereof are fatally defective in that they fail to allege that the offence charged was committed contrary to “the form of the statute in such case made and provided.”

2. Because the Court of General Sessions has not jurisdiction in cases of assault and battery, except in such as are of a high and aggravated nature, requiring greater punishment than that prescribed by the statutes made and provided in cases of simple assault and battery; and because the general statutes of South Carolina vest courts of trial justices with exclusive jurisdiction in cases of common or simple assault and battery.

3. Because if the offence charged were one of assault and battery of a high and aggravated nature, in which the Court of General Sessions would have jurisdiction, the said indictment is fatally defective in that it does not set out the aggravation.

The grounds of appeal raise the questions-

1. As to the conclusion of the indictment.

2. As to the jurisdiction of the Court of General Sessions in cases of assault and battery.

3. As to the allegations necessary in an indictment for assault and battery.

The constitution, Article IV, section 31, requires that “all indictments shall conclude against the peace and dignity of the state.”

And it is well-settled law, that in all statutory offences the indictment should conclude “against the form of the act,” &c. This was held in the recent case of State v. Strickland, 10 S. C. 191; and is found in all the books on criminal practice and pleadings, and a failure in this respect renders the indictment fatally defective. State v. Strickland, supra. Is the offence charged in this indictment a statutory or a common law offence?

All assaults and batteries previous to the act of 1870, ( Gen. Stat. 195,) were punishable at common law, and hence up to the passage of that act, they were all common law offences. The act of 1870, however, conferred upon trial justices jurisdiction in cases of assault and battery where the offence “is not of a high and aggravated nature,” and fixed the punishment for such assaults and batteries by fine not exceeding $100 or imprisonment not exceeding thirty days, and since the passage of this act, this class of assaults and batteries has been punishable under its provisions, the common law punishment having been repealed thereby. State v. Ripley, 2 Brev. 300;State v. Gray, 14 Rich. 174. “The common law is superseded by a statute, in so far as it is repugnant to the latter.” 1 Bl. Com. 89.

The effect of the act of 1870, was to divide assaults and batteries into two classes: First. Those “of a high and aggravated nature;” and, Second. Those below that grade, jurisdiction as to the latter being conferred by the act upon trial justices, with authority to inflict punishment by fine...