State v. Rector

• Decision Date: 19 September 1930
• Docket Number: 12976.
• Citation: 155 S.E. 385,158 S.C. 212
• Parties: STATE v. RECTOR et al.
• Court: South Carolina Supreme Court

155 S.E. 385

158 S.C. 212

STATE v. RECTOR et al.

No. 12976.

Supreme Court of South Carolina

September 19, 1930

Appeal from General Sessions Circuit Court of Greenville County; W H. Townsend, Judge.

C. A Rector, J. Harmon Moore, and another were charged with murder, and on motion of defendants named, the indictment was quashed, and the State appeals.

Affirmed.

J. G Leatherwood, Sol., and C. G. Wyche, both of Greenville, for the State.

D. W. Smoak, W. D. Workman, J. Frank Eppes, J. D. Lanford, and Mann & Plyler, all of Greenville, and Claude N. Sapp, of Columbia, and Mendel L. Smith, of Camden, for respondents.

BLEASE J.

On motion of the defendants Rector and Moore, the indictment in this case was quashed, and, from the order to that effect, the state has appealed.

The indictment contained three counts, all revolving around the alleged murder of Sam D. Willis. In the first, it was sought to charge the defendants, Rector, Moore, and Blair Rooks, as principals, with murder; in the second, Blair Rooks, as principal, and Rector and Moore as accessories before the fact; and, in the third, to charge Rooks, as principal, and the other defendants as accessories after the fact .

The first ground on which the order of the circuit judge was based was because, in his opinion, the indictment failed to allege, in either of the counts, the place of the death of the deceased, Willis; and that matter we shall first consider.

Our General Assembly has sought to simplify indictments in criminal cases, and to do away with much of the useless phraseology known to those intruments of pleading under the rules of the common law. See sections 89 and 93 of the Code of Criminal Procedure 1922, and State v. Alexander, 140 S.C. 325, 138 S.E. 835. But those statutory enactments must be so construed as to harmonize them with the provision of section 18, article 1 of our Constitution, which declares, "In all criminal prosecutions the accused shall *** be fully informed of the nature and cause of the accusation." State v. Jeffcoat, 54 S.C. 196, 32 S.E. 298.

The crime of murder is a composite one. It includes the assault committed upon a person with intent to kill, and the resulting death from that assault. The assault alone does not constitute the crime. Neither does the death of the person of itself make the crime. The crime cannot become complete until after the death of the assaulted person has occurred. The State must prove not only the assault and the death occurring from it, but the time of the assault and the time of the death, as time is recognized in the law. In addition, the state must prove the place of the assault and the place of death. These necessary elements of the crime of murder must not only be proved, before a person accused may be lawfully convicted, but they must be alleged in the indictment returned against the accused by the grand jury. The provisions of the Constitution, recognizing and following the principles of the common law, require the indictment to contain allegations to those effects. The provisions of the Criminal Code of Procedure, section 93, recognize that indictments for murder shall comply with the constitutional requirements, for in that section it is stated that an indictment for that crime shall set forth "the time and place" of the murder alleged to have been committed. See the recent case of State v. Platt, 154 S.C. 1, 151 S.E. 206, where we went fully into the necessity of alleging and proving the place of death of the person alleged to have been murdered.

The law being so plain, it is only necessary for us to inquire if the indictment in this case contained an allegation as to the place of the death of the deceased. In construing the effect of any one count in an indictment, we are required to look to the words of such count alone, for resort cannot be had to any other count to supply any deficiency in the count under consideration, or to explain the intention of that count. State v. Banks, 84 S.C. 543, 66 S.E. 999. In determining the intention and effect of any one count, however, we must look to all the words contained therein, in whatever paragraph they may be found, or whatever position they may occupy.

The language of each count of the indictment which in any way refers to the place of death is exactly the same. So it is only necessary to examine and pass upon the language of the first count in consideration of the whole indictment, and our holding as to that count will control as to the other two counts.

The first count, quoted in full, was as follows:

"The grand jurors of and for the County aforesaid, in the State aforesaid, upon their oath, present that Carlos A. Rector, J. Harmon Moore and Blair Rooks, on the twelfth day of June, in the year of our Lord one thousand nine hundred twenty-seven, with force and arms at Greenville, in the County of Greenville, State of South Carolina, in and upon one Sam D. Willis, feloniously, wilfully and of their malice aforethought, did make an assault; and that the said Carlos A. Rector, J. Harmon Moore and Blair Rooks, him the said Sam D. Willis, then and there feloniously, wilfully and of their malice aforethought, with a pistol did shoot and wound; giving to the said Sam D. Willis thereby in and upon the body of him the said Sam D. Willis, one mortal wound; of which said mortal wound the said Sam D. Willis did then die.

"And so the jurors aforesaid, upon their oath aforesaid, do say that the said Carlos A. Rector, J. Harmon Moore and Blair Rooks, him the said Sam D. Willis then and there in the manner and by the means aforesaid, feloniously, wilfully and of their malice aforethought, did kill and murder against the form of the statute in such case made and provided, and against the peace and dignity of the State."

In the first paragraph where the words "did then die" are used, it has been the practice to state "did then and there die," where the death of the deceased occurred in the same county where the assault was alleged to have been committed. If the death occurred at a place other than where the assault was alleged to have taken place, the practice has been to allege specifically the place of death; that is, the county and the state where the death of the deceased occurred. The indictment here, therefore, did not contain the language usually set forth in indictments for murder, since the passage of the statutes simplifying indictments for crime. And the failure to follow the customary manner of alleging necessary facts in an indictment for murder has brought about the question raised by the defendants in their motion to quash.

That we may examine the language of the count more closely, let us remove therefrom much of its phraseology and look mainly to the words italicized by us, which give, we think, information as to the time and place of the alleged assault and the time and place of the death of the deceased. The count then would read as follows:

"*** Carlos A. Rector, J. Harmon Moore and Blair Rooks, on the twelfth day of June, in the year of our Lord one thousand nine hundred twenty-seven *** at Greenville, in the County of Greenville, *** in and upon one Sam D. Willis, *** did make an assault; and that the said Carlos A. Rector, J. Harmon Moore and Blair Rooks, him the said Sam D. Willis, then and there *** did shoot and wound; giving to the said Sam D. Willis *** one mortal wound; of which said mortal wound the said Sam D. Willis did then die.

"*** That the said Carlos A. Rector, J. Harmon Moore and Blair Rooks, him the said Sam D. Willis then and there *** did kill and murder. ***"

It is clear that the count charged the assault to have been made on June 12, 1927, in the county of Greenville. It is equally clear that it charged that the accused then and there, that is, on June 12, 1927, and in Greenville county, did shoot and wound Willis. The wound given Willis was alleged to have been one mortal wound, and of that mortal wound it was charged that Willis did then die. The date of his death, by the use of the expression "did then die," clearly referred back to June 12, 1927, the only date named in the indictment, on which date it had been formerly stated the assault occurred and the mortal wound was given. Reference to the second paragraph of the count will disclose that therein it was stated that the defendants " then and there *** did kill and murder. ***" The murder there alleged to have been committed was the assault of Willis and his death from that assault. The word "then," used in that connection, clearly referred back to the time the assault was alleged to have been made, the time the wound was given, and the time Willis was alleged to have died, namely, June 12, 1927, for that was the only day mentioned in the count. The word "there" referred back to the place where the assault was made, the place where the wound was given, and the place where Willis died, for the only place mentioned in the indictment, prior to the appearance of the words ""then and there," was at Greenville, in the county of Greenville. We must hold that the use of the words "then and there," in the connection they were used, were sufficient to show that the place of death of the deceased was alleged to have been in the county of Greenville.

Our conclusion is supported by the decision of this court in the case of the State v. Blakeney, 33 S.C. 111, 11 S.E 637. In that case, the words "soon thereafter died" were used, where the indictment here had the words "did then die." On the trial of Blakeney, the point was made that the place of the death of the deceased had not been alleged. The circuit judge agreed with that view and allowed the solicitor to amend the indictment. After conviction, Blakeney appealed to the Supreme Court...