State v. Platt, (No. 12795.)

• Court: United States State Supreme Court of South Carolina
• Citation: 151 S.E. 206
• Docket Number: (No. 12795.)
• Parties: STATE. v. PLATT et al.
• Decision Date: 03 January 1930

151 S.E. 206

STATE.
v.
PLATT et al.

(No. 12795.)

Supreme Court of South Carolina.

Jan. 3, 1930.

Appeal from Common Pleas Circuit Court of Marion County; T. S. Sease, Judge.

Robert Platt was convicted of murder, and he appeals. Reversed and remanded.

See, also, 151 S. E. 214.

W. P. Stackhouse and A. F. Woods, both of Marion, for appellant.

L. M. Gasque, Sol., Lide & McCandlish and Henry Mullins, all of Marion, for the State.

BLEASE, J. The appellant, Robert Platt, together with Robert Harrelson and Ernest Jones, was indicted and tried in the court of general sessions for Marion county, before Honorable T. S. Sease, presiding judge, and a jury, for murder. Platt and Jones were found guilty, with a recommendation to mercy. Harrelson was convicted of manslaughter.

The exceptions are numerous, but, on account of the view entertained by the court, we do not deem it necessary at this time to pass upon any of the questions raised, except the two which are discussed.

The defendants were arraigned for trial on Monday, September 24, 1928. The appellant, Platt, by his counsel, demanded "three days sight of the indictment, " and tendered the proper fees for a copy of the same. The position was taken that the appellant could not be

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put to trial before Friday morning, and objection was made to the trial being entered into prior to that day. The court overruled that position and set the case for trial on Thursday morning. Soon after the arraignment, on Monday, a proper copy of the indictment was served on the appellant. On Thursday morning, September 27, 1928, over appellant's objection, the case was peremptorily called for trial, and the trial was entered upon. The appellant has excepted to the rulings and holdings of the court in this regard.

The right of a person indicted for a capital offense to have a copy of the indictment for a certain number of days prior to his trial is now regulated by section 69 of chapter 4 of the Code of Criminal Procedure, volume 1, Code of 1922, which section is as follows:

"Whoever shall be accused and indicted for any capital offense whatsoever shall have a true copy of the whole indictment, but not the names of the witnesses, delivered to him, three days, at least before he shall be tried for the same, whereby to enable him to advise with counsel thereupon, his attorney or attorneys, agent or agents, or any of them requiring the same, and paying the officer his usual fees for the copy of every such indictment."

In the case of the State v. Briggs, 1 Brev. 8, decided in 1794, it was held:

"The three days allowed a prisoner to prepare for his defence, on an indictment for felony, are inclusive of the day on which the motion is made for a copy of the indictment." Syllabus.

In that case, the prisoner, who was charged with horse stealing, was put to the bar and arraigned on Thursday. He demanded a copy of his indictment and three days' time to prepare for trial. "Being brought up again on the Monday following, his counsel objected to his being tried, insisting that the three days allowed by law were not expired; for that he was entitled to three days, exclusive, and that Sunday ought not to be reckoned, not being a juridical day." Mr. Justice Waties, speaking for the court, in a few words, decided against the prisoner's contention, and we quote his brief opinion in full:

"The rule with respect to time is to include the day on which the motion is made. The computation of time must commence from the time when the motion was made. The whole day must be included, because there can be no fractions of a day."

Since the decision in the Briggs Case, the practice in this state, so far as we are advised, has followed consistently the holding there made, and no question as to the correctness of that holding was raised until the case of the State v. Wright, 140 S. C. 363, 138 S. E. 828, 830, was heard.

In Wright's Case, the prisoner, who was charged with murder, was arraigned on Mon day, November 8, 1926. No demand was made at that time for a copy of the indictment, and there was no tender of the usual fees for such copy. A motion for a continuance beyond the term was entered by the defendant, and argument had thereupon. The decision of the judge on that matter was reserved until the following day, Tuesday. At the time set for disposing of this motion, November 9th, the motion for the continuance was refused, and the case was set for trial for Thursday morning, November 11th. Thereupon counsel for the appellant objected, stating that they had not had three days' sight of the indictment, and announced they would not be ready for trial as soon as the date fixed. On Thursday morning, when the case was called for trial, the same objection was interposed, but the judge held that the defendant had been arraigned for three days, that he had been given three days' sight of the indictment, and the case proceeded to trial. The defendant was convicted of manslaughter and appealed to this court, raising several questions, including the one referred to. The judgment below was affirmed. The Chief Justice wrote the opinion, in which Mr. Justice Carter fully concurred. As to the point under consideration, the Chief Justice said:

"The second exception is overruled, as defendant had his three days. The record shows that the defendant did not demand three days' sight of the indictment on the day that he was arraigned, and that he did not demand this until the 9th day of November, 1926, or the day after his arraignment." And he further said:

"It does not appear in the statement of the case that the defendant ever tendered the officer his usual fees for a copy of the indictment, nor was this done, and the provision of the statute is positive in this for it reads as follows (section 69, Code of Criminal Procedure [Volume 1, Code of Laws of South Carolina 1922])."

The holding of the Chief Justice was based mainly upon the case of State v. Briggs, supra.

Mr. Justice Cothran wrote a concurring opinion in the Wright Case, and in that Mr. Justice Stabler and the writer of this opinion concurred. In that concurring opinion Mr. Justice Cothran said:

"I think that the arraignment was complete on Monday November 8th, after defendant had entered his plea of 'not guilty.'" He further said:

"The ruling in State v. Briggs, 1 Brev. 8, that the day of the demand must be included in the computation of the three days, is contrary to my conception of the general rule that the first day must be excluded. I reserve my opinion upon the question whether the defendant is not entitled under section 69 of the Criminal Code of Procedure, to full three

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days between the day of arraignment and the day of trial."

It is quite likely that the position taken by the counsel for the appellant in the case at bar was suggested by the concurring opinion in the Wright Case. We are glad that the question has been squarely presented to this court for determination, since it is one of grave importance in the matter of procedure in the trial of cases in which defendants are charged with capital offenses. Speaking for himself, the writer of this opinion states frankly that he was always worried, in his practice in the court of general sessions, as to the decision in the Briggs Case, but he accepted it without making any examination as to the law on the subject there involved. So, when the matter was somewhat touched upon in the Wright Case, not having time then to make an investigation, he thought wise to join in the concurring opinion of Mr. Justice Cothran.

The precise question before the court now for determination relates to the proper manner of computing the "three days" allowed one "accused and indicted for any capital offense" before he may be tried for the crime charged, after delivery to him of "a true copy of the whole indictment" The proper answer to that inquiry will determine the question raised in the case at bar; namely, if there was error on the part of the trial judge in forcing the appellant to trial on Thursday when he was arraigned on Monday preceding, and a copy of the indictment delivered to him on that day.

Without doubt, if the holding made in the Briggs Case is good at this time, the answer to the question under consideration must be against the position of the appellant.

So far as we are able, after some research, to ascertain, the statute which the court construed in the Briggs Case was Act No. 530 of the year 1731 (3 St. at Large, p. 274), enacted when South Carolina was a province of the Kingdom of Great Britain. The legislation related to numerous things pertaining to the trial of persons charged with crime, and other matters not even connected with such trials, and was passed subject to the approval of "His Majesty, the King." There have been some amendments thereto from time to time. The language of our present law (section 69, Code of Criminal Procedure), with respect to the matter under consideration, is almost word for word with the language of the original enactment. The old law provided that persons accused and indicted for "felony or other capital offence" should have delivered to them, "three days, at least before he shall be tryed for the same, " a true copy of the whole indictment.

In seeking the reasoning of the court for the holding in the Briggs Case, we must remember that at the time of that decision our present statute as to computation of time, section 759 of the Code of Civil Procedure, volume 1, Code of 1922, was not of force, since it was not enacted until 1870. We are not advised of any statute existing in that day which regulated the computation of time. For a long time prior to the adoption of the general rule for the computation of time, as expressed in our Code, there was much confusion about that matter. Mr. Justice Glover seems to have been so much impressed with this confusion that he called attention to the remark of Lord Mansfield, "that much more subtlety than argument has...