State v. Munn

Decision Date05 May 1987
Docket NumberNo. 22742,22742
CitationState v. Munn, 292 S.C. 497, 357 S.E.2d 461 (S.C. 1987)
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. James Coker MUNN, Appellant. . Heard

James C. Cox, Jr. of Saleeby, Cox & Beldsoe, P.A., Hartsville, and Ronald M. Childress of Childress and Mille, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys.Gen. Harold M. Coombs, Jr., and Amie L. Clifford, Columbia, and Solicitor J. Dupre Miller, Bennettsville, for respondent.

HARWELL, Justice:

Appellant was convicted of criminal sexual conduct in the second degree.We reverse and remand.

Appellant was indicted for criminal sexual conduct in the second degree pursuant to S.C.Code Ann. § 16-3-653(1976).The trial judge charged the jury, however, only on criminal sexual conduct with a minor in the second degree pursuant to S.C.Code Ann. § 16-3-655(3)(1976).The jury returned a verdict of guilty.

A defendant in a criminal case is entitled to be tried only on the charges set forth in the indictment.S.C.Code Ann. § 17-19-10(1976).The test of sufficiency of an indictment is whether or not it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to defend.S.C.Code Ann. § 17-19-20(1976);State v. Tabory, 262 S.C. 136, 202 S.E.2d 852(1974).

Criminal sexual conduct in the second degree, as set forth in the indictment, requires that an actor use aggravated coercion to accomplish sexual battery.The term "aggravated coercion" means that the sexual battery must occur under circumstances where the victim's consent is lacking.State v. Cox, 274 S.C. 624, 266 S.E.2d 784(1980).Criminal sexual conduct with a minor in the second degree, the offense on which the jury was instructed, requires that an actor engage in a sexual battery with a victim who is at least fourteen years of age but less than sixteen years of age and the actor be in a position of familial, custodial, or official authority to coerce the victim to submit, or be older than the victim.Since Section 16-3-655(3) includes the additional element of an age requirement, it is not a lesser included offense of Section 16-3-653.

Appellant did not make an objection about this matter at trial.Defects in the indictment which are of such a fundamental character as to make the indictment wholly invalid are not subject to waiver by a defendant.41 Am.Jur.2dIndictments and Informations§ 299(1968).Subject to certain minor exceptions not present here, the trial court lacks subject matter jurisdiction to convict a defendant for an offense when there is no indictment charging him with that offense when the jury is sworn.State v. Beachum, 288 S.C. 325, 342 S.E.2d 597(1986);State v. Hann, 196 S.C. 211, 12 S.E.2d 720(1940).

Appellant's "conviction" under Section 16-3-653 is reversed and remanded.There is no merit to appellant's argument that the state can not try him again.SeeMontana v. Hall, --- U.S. ----, 107 S.Ct. 1825, 95 L.Ed.2d 354(1987).

We wish to note for the benefit of the bench and bar that there is no rule allowing any and all statements made by the alleged victim to be admissible...

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  • State v. Gentry
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    • South Carolina Supreme Court
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    ...this Court. Id. However, as was done by the Supreme Court in Bain, this Court broadened the meaning of jurisdiction in State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987). Prior to Munn, the rule was that any objection to the sufficiency of the indictment, i.e. that the indictment was defect......
  • Cabbagestalk v. McFadden
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    ...court room period. (See S.C. Code Ann. § 17-19-10 (1985) accord Hopkins v. State, 317 S.C. 7, 451 S.E.2d 389 (1994); State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987), Browning v. State 320 S.C. 366, 465 S.E.2d 358 (1995), State v. Beachum, 288 S.C. 325 [last line illegible]Ground Eight: O......
  • Joseph v. State
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    • South Carolina Supreme Court
    • October 14, 2002
    ...subsequent prosecution." State v. Owens, supra (citing State v. Owens, 293 S.C. 161, 165, 359 S.E.2d 275, 277 (1987);5 State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987) (test of sufficiency of indictment is whether it contains necessary elements of offense intended to be charged and suffic......
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  • Rule 801. Definitions
    • United States
    • South Carolina Evidence Annotated (SCBar) Chapter 1 - South carolina rules of evidence Article VIII. HEARSAY
    • Invalid date
    ...State v. Caldwell, 283 S.C. 350, 322 S.E.2d 662 (1984); State v. Plyler, 275 S.C. 291, 270 S.E.2d 126 (1980); but see State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987) (all out-of-court statements made by alleged victim not necessarily admissible simply because victim testifies at trial). ......
  • Rule 801. Definitions
    • United States
    • South Carolina Evidence Annotated (SCBar) (2019 Ed.) Chapter 1 South Carolina Rules of Evidence Article VIII. Hearsay
    • Invalid date
    ...Caldwell, 283 S.C. 350, 322 S.E.2d 662 (1984); State v. Plyler, 275 S.C. 291, 270 S.E.2d 126 (1980); but see State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987) (all out-of-court statements made by alleged victim not necessarily admissible simply because victim testifies at trial). Subsectio......
  • Rule 801. Definitions
    • United States
    • South Carolina Evidence Annotated (SCBar) (2020 Ed.) Chapter 1 South Carolina Rules of Evidence Article VIII. Hearsay
    • Invalid date
    ...State v. Caldwell, 283 S.C. 350, 322 S.E.2d 662 (1984); State v. Plyler, 275 S.C. 291, 270 S.E.2d 126 (1980); but see State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987) (all out-of-court statements made by alleged victim not necessarily admissible simply because victim testifies at trial). ......
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    • United States
    • The Criminal Law of South Carolina (SCBar) Chapter II Offenses Against the Person
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    ...coercion in criminal sexual conduct in the second degree and the age of the victim in criminal sexual conduct with a minor. State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987). An indictment for assault to commit third degree criminal sexual conduct could not be amended at trial to charge as......
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