State v. Napier
| Decision Date | 07 March 1902 |
| Citation | 41 S.E. 13,63 S.C. 60 |
| Parties | STATE v. NAPIER. |
| Court | South Carolina Supreme Court |
Appeal from general sessions circuit court of Marlboro county Klugh, Judge.
J. W Napier was convicted of soliciting emigrants without a license, and appeals. Affirmed.
Indictment against J. W. Napier, under the following act of 1898 "An act to prohibit emigrant agents from plying their vocation within this state without first obtaining a license therefor, and for other purposes.
From conviction and sentence, defendant appeals.
T. I. Rogers and J. H. Hudson, for appellant. Mr. Johnson, for the State.
The appellant was convicted and sentenced for violating the act approved February 11, 1898, known as the "Emigrant Agent's Act." This appeal from said judgment raises two questions: (1) Whether the indictment should have been quashed for uncertainty in charging the offense, in failing to specify any act of hiring or soliciting a laborer or laborers to be employed beyond the limits of the state; and (2) whether said act is constitutional.
1. The circuit court quashed the first count of the indictment, but refused to quash the second count, which is as follows: "And the jurors aforesaid, upon their oath aforesaid, do further present that J. W. Napier on the 20th day of December in the year of our Lord 1899, with force and arms, at Bennettsville, in the county and state aforesaid, did unlawfully engage in hiring laborers and in soliciting emigrants in this state, to wit, in the state of South Carolina, and in the county of Marlboro, to be employed beyond the limits of this state,--that is to say, which laborers and emigrants were then and there to be exported from this state for employment beyond the limits of this state; the said J. W. Napier then and there not having first obtained a license therefor, and so to do, from the state treasurer of the state of South Carolina,--against the form of the statute in such case made and provided, and against the peace and dignity of the state." An indictment, whether at common law or under a statute, must state the offense with sufficient certainty and particularity to enable (1) the court to properly perform its duty in ascertaining whether, if the facts stated be true, they constitute a criminal offense, in confining the testimony to the specific charge, and in imposing the proper punishment in case of conviction; (2) that the defendant may know what he is called upon to answer, and to properly prepare his defense; and (3) that an acquittal or conviction may be pleaded in a subsequent prosecution for the same offense. Const. art. 1, § 18, requires that the accused shall "be fully informed of the nature and cause of accusation," and this must necessarily involve a particular statement of all the facts constituting the offense charged. Applying the rule requiring certainty in charging a criminal offense, it has been held in State v. Steedman, 8 Rich. Law, 312, and other cases, that an indictment for retailing spirituous liquors was bad, for failing to specify any person to whom the sale was made, or other identifying circumstances; and this same principle was recently applied by this court in the cases of State v. Jeffcoat, 54 S.C. 196, 32 S.E. 298, and State v. Couch, 54 S.C. 286, 32 S.E. 408, which show that, in an indictment under the dispensary act for selling intoxicating liquors, the name of the person to whom the sale is made should be specified. Likewise, in the case of State v. Powell, 10 Rich. Law, 373, an indictment under the act requiring peddlers to obtain license was held bad, which simply charged "that A. P., on," etc., "at," etc., "did sell and expose to sale divers goods," etc., "the said A. P. then and there being a peddler, and not having obtained a lawful license," etc.; the defect being in failing to specify any person to whom the goods were sold or offered for sale, or other identifying circumstances. So, in the case of State v. Brunson, 2 Bailey, 149, the court, in effect, held that an indictment for violating public decency must set out the specific acts and circumstances of indecency. These authorities undoubtedly show the rule applicable where the offense charged is completed by a single act; but there is an exception to the rule "when the offense includes in its nature a succession or continuation of acts which do not necessarily belong to any particular period, but from the daily habit and character of the offense, as public nuisances, bawdy houses, and the like, the indictment may so charge it, and any fact going to establish it anterior to the finding of the bill may be given in evidence, and consequently a conviction would be a good bar to another prosecution for an act committed before the finding of the bill." The foregoing quotation is from State v. McBride, 4 McCord, 332, which cites 1 Chit. Cr. Law, 189, 230. In Clark, Cr. Proc. 161, the author says: This last sentence is supported by the citation of 2 Hawk, P. C. c. 25, § 59; Rex v. Mason, 2 Term R. 586; Com. v. Pray, 13 Pick. 359; Com. v. Davis, 11 Pick. 434; State v. Russell, 14 R.I. 506. The author also cites our case of State v. Chitty, 1 Bailey, 379. In that case, a justice of the peace was indicted as a common barrator, and the indictment alleged in general terms that "divers quarrels, strifes, suits, and controversies among the honest and quiet citizens of this state," he, the said defendant, "did move, procure, stir up, and excite, to the evil example," etc. In the case it appears that, conformably to the practice in relation to general indictments, the defendant was served with a notice in writing of the particular act of barratry which would be relied on in behalf of the prosecution, and to these the evidence of the trial was confined. The court considered the notice as not a part of the indictment, but as nothing more than a bill of particulars of the evidence intended to be offered on the trial, rendered necessary by the generality of the charge.
It is contended in this case that the indictment falls within the exception, and not within the general rule, and the difficulty lies in determining in which class the offense charged should be placed. The offense made punishable by the statute in question is doing or carrying on the business of hiring laborers or soliciting emigrants in this state, to be employed beyond the limits of the state, without a license. The statute affects a business or vocation, rather than a specific act. The title is "to prohibit emigrant agents from plying their vocation," etc. The first section says, "No person shall carry on the business of an emigrant agent," etc. The second ...
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