State v. Miller, 16836

• Decision Date: 23 February 1954
• Docket Number: No. 16836,16836
• Citation: 225 S.C. 21,80 S.E.2d 354
• Court: South Carolina Supreme Court
• Parties: STATE v. MILLER.

Page 354

80 S.E.2d 354

225 S.C. 21

STATE v. MILLER.

No. 16836.

Supreme Court of South Carolina.

Feb. 23, 1954.

James W. Workman, Union, Thomas B. Hamilton, Chester, for appellant.

Sol. Robert W. Hemphill, Chester, for respondent.

BAKER, Chief Justice.

The appellant and one Ralph Bolin were indicted at the January, 1953, term of the General Sessions Court for Chester County, South Carolina, upon two indictments. Indictment number 17 contained four counts and charged appellant and Bolin with a conspiracy to break and enter Manetta Mills Store and Manetta Mills Office at Lando, South Carolina; housebreaking into the office and store of Manetta Mills; larceny of the goods of Manetta Mills, and others; and malicious injury to the personal property of Manetta Mills. Indictment number 18 containing two counts charged Bolin and the appellant with housebreaking and entering the Post Office of the United States at Lando, South Carolina, and with larceny of $65 belonging to the United States Government. The United States Post Office at Lando was an enclosure in the center portion of the Manetta Mills Store building, which building also housed the Manetta Mills Office.

At the January term, as aforesaid, Bolin pleaded guilty to indictment number 17, while appellant pleaded not guilty, and was tried and acquitted.

Thereafter, during February, appellant filed a petition for a Writ of Habeas Corpus seeking his discharge upon the grounds that to hold him for trial upon the charge as set forth in the indictment number 18 constituted double jeopardy and alleging former acquittal of the offense therein charged. This Court, in its order dated February 10, 1953, denied appellant's petition without prejudice to him to interpose any defenses at the time of trial, including that of autrefois acquit and double jeopardy.

At the March, 1953, term of the Court of General Sessions for Chester County, appellant entered a special plea of autrefois acquit by reason of the trial and acquittal on indictment 17, and asked that by reason thereof he be discharged, lest he be placed twice in jeopardy by being tried on indictment number 18. To this special plea, the Solicitor, on behalf of the State, demurred, and Judge Lewis sustained the demurrer. The defendnat thereupon entered a plea of not guilty, proceeded to trial, and was convicted. Both appellant and Bolin, who had pleaded guilty, were sentenced. The appellant was sentenced to imprisonment for a term of five years on the first count, that of housebreaking, and to a term of seven years on the second count, that of grand larceny, the sentence on the second count to run concurrently with that on the first.

The appellant has appealed to this Court upon seven exceptions, all of which deal with the failure to the Trial Judge to sustain the plea of autrefois acquit, and former jeopardy. He has also appealed from the order of Honorable. J. Woodrow Lewis, Trial Judge settling the case on appeal, and sets forth four exceptions to this order.

According to the diagram of the premises, which is a part of the record, the wire-enclosed Post Office is situate in the central portion of the building which houses the Manetta Mills Store and the Manetta Mills Office. In the trial at the January term of court on indictment number 17, the testimony was to the effect that entry had been gained through the door on the south or southwest side of the building, thereby entering into Manetta Mills Store. Testimony was further to the effect that the defendants, Bolin and Miller, had forced an entry into the wire-enclosed Post Office, the door to which was locked, and had entered the safe therein and removed certain contents therefrom. This testimony went further to show that entry had been made into the store office safe and certain funds were stolen therefrom, along with certain papers and other valuables from the safe of the Manetta Mills office. It was upon this trial that the appellant was acquitted.

It is the contention of the appellant that the acquittal in this trial, wherein the indictment in paragraph two (2) charged the offense of housebreaking and entering the Manetta Mills office and store, was in effect an acquittal of any offense involving entry into the United States Post Office at Lando, South Carolina. He contends that since the United States Post Office cannot be entered without first entering the said Manetta Mills Store building, and he having been found not guilty of breaking and entering the Manetta Mills Store building, he cannot possibly be found guilty of breaking and entering the United States Post Office. It is further the positon of appellant that the trial in the first instance upon count number 3 in indictment number 17 charging him with the stealing of goods and chattels of Manetta Mills, a South Carolina corporation, 'and of others,' included a trial for, and acquittal of, the offense of stealing the goods and chattels of the United States Government from the Post Office at Lando, South Carolina.

The Constitution of the State of South Carolina of 1895, Article 1, § 17, reads as follows: 'Nor shall any person be subject for the same offense to be twice put in jeopardy of life or liberty * * *.' This is the constitutional provision that appellant would invoke here. In the very early cases of State v. Sonnerkalb, 11 S.C.L. 280, 2 Nott. & McC. 280, and State v. Taylor, 18 S.C.L. 49, 2 Bailey 49, and State v. Glasgow, 23 S.C.L. 40, Dud. 40, it was held that the test by which the question of former jeopardy would be determined was whether the facts alleged in the second indictment or the evidence necessary to support the same would have been sufficient to procure or sustain a legal conviction upon the first indictment. Mr. Justice Cothran, in his opinion in State v. Corbitt, 117 S.C. 356, 109 S.E. 133, 20 A.L.R. 328, exhaustively notes the South Carolina cases on the subject including the cases of State v. Fife, 17 S.C.L. 17 1 Bailey 1; State ex rel. Burton v. Williams, 11 S.C. 288; State v. Taylor, supra; State v. Thurston, 27 S.C.L. 382, 2 McMul. 382; State v. Switzer, 65 S.C. 187, 43 S.E. 513; State v. Van Burden, 86 S.C. 297, 68 S.E. 568; State v. Rodgers, 100 S.C. 77, 84 S.E. 304; State v. Jenkins, 20 S.C. 351; State v. Parish, 42 S.C.L. 322, 8 Rich. 322; State v. DeWees, 76 S.C. 72, 75, 56 S.E. 674, 675, 11 Ann.Cas. 991.

In State v. Corbitt, supra, the defendant had been tried for the murder of one of three persons who had been killed or who had come to their death on the same date. Under the admitted facts, the defendant Corbitt was in his front yard when the...