State v. Nash

• Decision Date: 17 February 1898
• Citation: 28 S.E. 946,51 S.C. 319
• Parties: STATE v. NASH.
• Court: South Carolina Supreme Court

28 S.E. 946

51 S.C. 319

STATE v. NASH.

Supreme Court of South Carolina

February 17, 1898

Appeal from general sessions circuit court of Greenville county; R C. Watts, Judge.

John H Nash was convicted of malicious trespass, and appealed to the circuit court. From a judgment reducing the fine, and otherwise affirming the judgment of the magistrate, defendant appeals. Affirmed.

C. F Dill and C. I. Hunt, for appellant.

M. F. Ansel, for the State.

POPE J.

The defendant was convicted of the misdemeanor of malicious trespass before W. H. Britt, Esq., a magistrate for Fairview township, in Greenville county, in this state, on the 10th day of June, 1897; and after being sentenced to pay a fine of $50, or, in lieu thereof, to be imprisoned in the county jail for 20 days, he appealed from such judgment. His appeal came on to be heard before Judge Watts, in the circuit court for Greenville county, on the 29th July, 1897; and, after reducing the fine from $50 to $20, the said circuit judge affirmed the judgment of the magistrate. The defendant, as appellant, now seeks by his appeal to reverse such judgment of the circuit judge.

The first allegation of error is that the circuit judge refused to set aside all the proceedings before the magistrate when it was made to appear that there was an alteration in the information upon which the warrant was issued after the defendant had been arrested, and when he appeared for trial. The case shows that the warrant of the magistrate under which the defendant was arrested was for malicious trespass. The information upon which it was based charged the defendant with malicious trespass upon the land of Mary E. Nash after having been given notice not to do so. Just before trial the words "willfully, unlawfully," were inserted in the information, just before the words "maliciously trespass," etc., and also the additional words "which land was in the possession of deponent at the time of said trespass, and by said trespass said John H. Nash has driven up stakes on said land, and inclosed about two acres thereof, by putting a wire fence around the same, whereby he has injured deponent in the sum of $19. State and county mentioned, Fairview township,"--were inserted just after the words "notice not to do so." The appellant suggests that these words change the offense. After reflection, I am unable to state that the circuit judge committed any error here. It is true that the constitution of this state does require that the accused shall be fully informed of the nature and cause of the accusation, but the accused in the case at bar was fully informed that he was charged with malicious trespass upon the lands of Mary E. Nash after notice forbidding such trespass. The law in regard to information under oath, as the basis for a warrant of arrest, allows amendment before trial of such information. See section 19 of the Criminal Statutes of South Carolina (volume 2 of the Revised Statutes of 1893). The words "willfully, unlawfully," inserted before the word, "maliciously," already there, were inserted, no doubt, to incorporate the exact words of section 166 of the Criminal Statutes of South Carolina in the information; but this was unnecessary care, for the legislature itself, in the act of 1892 (21 St. at Large, pp. 93, 94), both in the title and body of such act, had referred to this offense as "malicious trespass." This remark disposes of the other words added. Nor is there any virtue in the position that such amendments to the information were not sworn to anew. The prosecutrix was present when these words were added to the information, to which she had already sworn; and I will assume that the same changes were made at her instance, or with her full assent. The case shows that she, in her...