State v. O'Neal

• Decision Date: 01 May 1947
• Docket Number: 15941.
• Citation: 42 S.E.2d 523,210 S.C. 305
• Parties: STATE v. O'NEAL et al.
• Court: South Carolina Supreme Court

42 S.E.2d 523

210 S.C. 305

STATE v. O'NEAL et al.

No. 15941.

Supreme Court of South Carolina

May 1, 1947

J. A. Hutto, C. T. Graydon, and John Grimball, all of Columbia, for appellant.

T P. Taylor, Sol., of Columbia, for respondent.

FISHBURNE, Justice.

The defendants, Douglas, alias 'Doug' O'Neal, George Walker, and Joseph Harris, were tried in the court of general sessions for Richland County and found guilty of keeping and maintaining a gaming house, in violation of Section 1738 1942 Code. From the judgment of the court and from the order refusing their motion for a directed verdict, made at the close of the testimony offered in behalf of the state, they appeal to this court.

Error is assigned because the court permitted the indictment to be amended with reference to a misnomer affecting the defendant Joseph Harris, and in refusing to quash the indictment upon this ground. After the trial of the case had commenced and two jurors had been accepted but not sworn, counsel for the appellant, Joseph Harris, moved to quash the indictment because the accused was erroneously named therein as Earl Harris. Thereupon the court granted the motion of the solicitor to amend the indictment by substituting the name of Joseph Harris for Earl Harris, without resubmitting the indictment to the grand jury.

Section 1005 of the Code of 1942 provides:

'If there be any defect in form in any indictment it shall be competent for the court before which the case is tried to amend the said indictment: Provided, such amendment does not change the nature of the offense charged * * *.'

The provisions of this Code section were construed and applied in the case of State v. Blackstone, 113 S.C. 528, 101 S.E. 845, in which the indictment charged violation of the prohibition law. The facts in that case insofar as they relate to misnomer, are practically parallel with the facts appearing here. Blackstone was indicted in the name of J. F Blalock, alias Blackstone. Upon call of the case for trial, a motion to quash the indictment was made on the ground of misnomer, it being shown by affidavit that the defendant's true name was A. S. Blackstone. The motion to quash was overruled, the amendment was allowed, and the true name of the defendant inserted in the indictment without resubmission to the grand jury. Upon appeal, this court sustained the action of the lower court upon the ground that the amendment did not change the nature of the offense charged. And see State v. McGill, 191 S.C. 1, 3 S.E.2d 257. The appellant in this case did not suggest that he was not the person charged, or that by mistake in identity he had been substituted for the real person.

The exceptions raising this issue cannot be sustained for another reason. It appears from the record that before the indictment was returned by the grand jury, Joseph Harris was arrested for this same offense under a warrant issued from the recorder's court for the city of Columbia, in which he was named as Earl Harris. Upon his arrest, he filed bond under the name of Joseph Harris for his appearance before the court of general sessions. He was indicted by the grand jury under the name of Earl Harris, a bench warrant was issued for his arrest in that name, and he again gave bond in the name of Joseph Harris. It is evident that the clerk of the city court and the clerk of the circuit court failed to note the discrepancy in the name under which the two bonds were filed. Upon the call of the case, the defendant, Joseph Harris, together with his codefendants, pleaded not guilty, and the trial of the case had proceeded to the stage where at least two jurors had been accepted before the motion to quash was made.

It is generally held that by pleading to the charge an accused waives a misnomer in an indictment or information, and thereby admits that the name by which he is charged is his true name, 42 C.J.S., Indictments and Informations,§ 306, page 1337.

It was held in State v. Thompson, Cheves 31, 25 S.C.L. 31, that after a prisoner has pleaded not guilty he may not avail himself of a misnomer in the indictment, either on his trial or in arrest of judgment, or on motion for a new trial. It was observed in that case that there was no hardship in the rule; for the prisoner lost no advantage or privilege by it on trial, and, if he had need afterwards to resort to a plea of autrefoits convict, he would be allowed to show that he was the same person theretofore convicted. To the same effect see State v. Faile, 43 S.C. 52, 20 S.E. 798.

Nor did the trial court err in directing the appellants to stand as their names were called, for the purpose of being identified by the prosecuting witness. While the witness, Mr. Bracey, was testifying, he undertook to identify the three appellants as the persons with whom he played poker in an alleged gaming house located on Main Street in the city of Columbia, known as the Five O'Clock Club. He described the appellant, Walker, as 'the one sitting to the right there (indicating); the big fellow in the grey suit.' Whereupon the court directed Mr. Walker to stand up for a more complete identification.

In many cases a question has been raised as to whether the accused can be compelled to exhibit himself for the purpose of identification or of comparison with evidence introduced on the trial. The authorities are not in harmony. 14 Am.Jur., Sec. 152, Page 875. But we agree with those cases which hold that the constitutional provision that no person shall be compelled to be a witness against himself, is not violated by compelling the defendant in a criminal case to stand up for the purpose of identification. People v. Gardner, 144 N.Y. 119, 38 N.E. 1003, 28 L.R.A. 699, 43 Am.St.Rep. 741; People v. Oliveria, 127 Cal. 376, 59 P. 772; State v. Reasby, 100 Iowa 231, 69 N.W. 451.

The rule on the subject of bodily exhibition of the accused in a criminal case is well stated by Mr. Wigmore in his work on Evidence. He says (Sec. 2265):

'If an accused person were to refuse to be removed from the jail to the court room for trial, claiming that he was privileged not to expose his features to the witnesses for identification, it is not difficult to conceive the judicial reception which would be given to such a claim. And yet no less a claim is the logical consequence of the argument that has been frequently offered and occasionally sanctioned in applying the privilege to proof of the bodily features of the accused. The limit of the privilege is a plain one. From the general principle (ante, Sec. 2263) it results that an inspection of the bodily features by the tribunal or by witnesses cannot violate the privilege, because it does not call upon the accused as a witness, i. e., upon his testimonial responsibility. That he may in such cases be required sometimes to exercise muscular action, as when he is required to take off his shoes or roll up his sleeve, is immaterial, unless all bodily action were synonymous with testimonial utterance; for, as already observed (ante, Sec. 2263), not compulsion alone is the component idea of the privilege, but testimonial compulsion. What is obtained from the accused by such action is not testimony about his body, but his body itself. Unless some attempt is made to secure a communication, written or oral, upon which reliance is to be placed as involving his consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one. Both principle and practical good sense forbid any larger interpretation of the privilege in this application, and healthy judicial opinion his frequently pointed this out with force.'

It is the right of the prisoner to be in the presence and view of the jury, and it is the right of the prosecution to have him in the view of the presiding judge and jury, and the counsel engaged in the trial. And whether at any particular time he shall stand up or sit down in the presence of the jury must be a matter resting in the discretion of the trial judge. In no sense can it be said that by the wise exercise of such discretion his constitutional right is involved. Supporting this view, see Annotation, Ann.Cas., 1912D, 263.

Error is assigned because the court, over...