State v. O'neal, No. 15941.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtFISHBURNE, Justice
Citation42 S.E.2d 523
Docket NumberNo. 15941.
Decision Date01 May 1947
PartiesSTATE. v. O'NEAL et al.

42 S.E.2d 523

STATE.
v.
O'NEAL et al.

No. 15941.

Supreme Court of South Carolina.

May 1, 1947.


[42 S.E.2d 523]

Appeal from General Sessions Circuit Court of Richland County; G. Duncan Bellinger, Judge.

Douglas O'Neal, alias "Doug" O'Neal, George H. Walker, and Joseph Harris were convicted of keeping and maintaining a gaming house, and from the judgment, 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.

Judgment affirmed.

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

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

[42 S.E.2d 524]

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. McGili, 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

[42 S.E.2d 525]

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...

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23 practice notes
  • State v. Patterson, No. 4069.
    • United States
    • Court of Appeals of South Carolina
    • January 9, 2006
    ...in the view of the presiding judge and jury, and the counsel engaged in the trial.'" Id. (quoting State v. O'Neal, 210 S.C. 305, 310-311, 42 S.E.2d 523, 525 (1947)). In some circumstances, a defendant may be presumed to waive or forfeit the right to be present by misbehaving in the courtroo......
  • Town of Mount Pleasant v. Chimento, No. 27197.
    • United States
    • United States State Supreme Court of South Carolina
    • January 10, 2013
    ...predominates. See Atchison v. Gee, 15 S.C.L. (4 McCord) 211 (1827) (betting on horse racing is gaming); State v. O'Neal, 210 S.C. 305, 42 S.E.2d 523 (1947) (poker is gaming); State v. White, 218 S.C. 130, 61 S.E.2d 754 (1950) (room where poker played for money is gambling room); [737 S.E.2d......
  • State v. Britt, No. 17598
    • United States
    • United States State Supreme Court of South Carolina
    • December 17, 1959
    ...The appellants assert that the trial Judge was in error in refusing to sequester these four witnesses. In State v. O'Neal, 210 S.C. 305, 42 S.E.2d 523, 526, this Court 'The granting or refusing of a motion for separation or sequestration of witnesses is within the sound discretion of the tr......
  • State v. Smith, No. 17210
    • United States
    • United States State Supreme Court of South Carolina
    • October 26, 1956
    ...protect. For instance, a defendant may be required to stand up in court for the purpose of identification. State v. O'Neal, 210 S.C. 305, 42 S.E.2d 523. It has been held that an officer's testimony was admissible to the effect that he compared defendant's shoe with certain tracks and that i......
  • Request a trial to view additional results
23 cases
  • State v. Patterson, No. 4069.
    • United States
    • Court of Appeals of South Carolina
    • January 9, 2006
    ...in the view of the presiding judge and jury, and the counsel engaged in the trial.'" Id. (quoting State v. O'Neal, 210 S.C. 305, 310-311, 42 S.E.2d 523, 525 (1947)). In some circumstances, a defendant may be presumed to waive or forfeit the right to be present by misbehaving in the courtroo......
  • Town of Mount Pleasant v. Chimento, No. 27197.
    • United States
    • United States State Supreme Court of South Carolina
    • January 10, 2013
    ...predominates. See Atchison v. Gee, 15 S.C.L. (4 McCord) 211 (1827) (betting on horse racing is gaming); State v. O'Neal, 210 S.C. 305, 42 S.E.2d 523 (1947) (poker is gaming); State v. White, 218 S.C. 130, 61 S.E.2d 754 (1950) (room where poker played for money is gambling room); [737 S.E.2d......
  • State v. Britt, No. 17598
    • United States
    • United States State Supreme Court of South Carolina
    • December 17, 1959
    ...The appellants assert that the trial Judge was in error in refusing to sequester these four witnesses. In State v. O'Neal, 210 S.C. 305, 42 S.E.2d 523, 526, this Court 'The granting or refusing of a motion for separation or sequestration of witnesses is within the sound discretion of the tr......
  • State v. Smith, No. 17210
    • United States
    • United States State Supreme Court of South Carolina
    • October 26, 1956
    ...protect. For instance, a defendant may be required to stand up in court for the purpose of identification. State v. O'Neal, 210 S.C. 305, 42 S.E.2d 523. It has been held that an officer's testimony was admissible to the effect that he compared defendant's shoe with certain tracks and that i......
  • Request a trial to view additional results

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