State v. Richardson

• Decision Date: 16 July 1896
• Citation: State v. Richardson, 47 S.C. 166, 25 S.E. 220 (S.C. 1896)
• Parties: STATE v. RICHARDSON.
• Court: South Carolina Supreme Court

25 S.E. 220

47 S.C. 166

STATE v. RICHARDSON.

Supreme Court of South Carolina

July 16, 1896

Appeal from general sessions circuit court of Spartanburg county Buchanan, Judge.

Aaron R. Richardson was convicted of a crime, and appeals.Reversed.

Judge Buchanan, in passing on the question involved, made the following ruling: "At the calling of the state against Aaron R. Richardson, when called upon to plead, he interposes the plea of former jeopardy.The offense charged in the indictment is alleged to have been committed on the 27th day of November, 1895, before the new constitution went into effect.The defendant contends that the change in the provisions of the new constitution means such a change as allows a plea of former jeopardy, instead of former acquittal or former conviction, under the constitution of 1868; that by reason of having been put upon trial yesterday, he was arraigned and pleaded not guilty and, one witness being examined on the stand, such examination or procedure, or whatever it may be called, was putting the prisoner in former jeopardy under the new constitution; and that, by reason of such former jeopardy, he is now entitled to his discharge.On the part of the state it is contended that he was in no jeopardy, and that the case could be withdrawn from the jury at any time before a verdict was reached; that being surprised, and having only one witness on the stand, and not being sufficient to make out the case, the offense having been committed before the new constitution went into effect he was entitled to trial, and the state was entitled to put him upon trial again, and produce its witnesses, as if nothing had occurred looking to his trial.The court holds it being a novel question, there being no decision since the new constitution was adopted upon the point, and the court having no authorized official copy of the constitution before it, the offense having been committed before the new constitution went into effect, and being in doubt as to the proper conclusion to come to, there being no authority, and the prisoner being entitled to appeal, and the state not being entitled to appeal, in order that the question may arise and be decided as early as possible, the prisoner's plea of former jeopardy is overruled."

Thomason & Bomar, for appellant.

Solicitor Schumpert, for the State.

McIVER C.J.

The defendant in this case was arraigned under an indictment for grand larceny, in stealing live stock, on the 2d day of March, 1896, and upon his arraignment pleaded not guilty, and thereupon a jury was duly impaneled and sworn according to law, and charged with the trial of the case.The solicitor, having opened the case for the state, and examined the prosecutor as a witness, discovered that one of his witnesses was absent, he having been permitted, by mistake, to go home, and he thereupon moved the court"to withdraw the case from the jury; and the court(there being no objection made by the prisoner) did withdraw the said case from the jury, and had the prisoner remanded to jail, and ordered the next case on, which was The State v. James Bracy, which was tried and disposed of.That on the next day, to wit, on Tuesday, the 3d day of March, 1896, the said Aaron R. Richardson was again brought into court, and arraigned for the same, identical offense for which he had been put on trial the day before, held and arraigned under the same indictment, and upon his arraignment, through his counsel, put in plea of former jeopardy, viz. that he was put in jeopardy for the same offense on the day before.To this the solicitor replied that he had not been put in jeopardy such as the law contemplated, which was acquittal or conviction."His honor, Judge Buchanan, overruled the plea, for the reasons set forth in the "case," which should be incorporated in the report of this case; and the trial proceeded, which resulted in a verdict of guilty; and, sentence having been passed, defendant appeals, upon the ground set out in the record, which makes the single question whether there was error in overruling the plea.

One of the settled rules of the common law was that no one shall be twice put in jeopardy upon the same charge.As is said in Cooley, Const. Lim.(2d Ed.), at pages 325, 326: "One thing more is essential to a proper protection of accused parties, and that is that one shall not be subject to be twice put in jeopardy upon the same charge."And, at page 327, the same author says: "A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in from and substance to sustain a conviction and a jury has been charged with his deliverance.And a jury is said to be thus charged when they have been impaneled and sworn.The defendant then becomes entitled to a verdict, which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continuance of the cause."The same doctrines are laid down in 1 Bish. Cr. Law (6th Ed.), at section 1013 et seq., and are fully recognized in the leading case of State v. McKee, 1 Bailey, 651.If, therefore, this question is to be determined by these well-settled principles of the common law, there could be no doubt that there was error in overruling the plea of former jeopardy; for the "case" shows that the defendant was put upon his trial under a valid indictment, before a court of competent jurisdiction, and after a jury was charged with the trial of the case, and after one witness in behalf of the state had been examined, the solicitor was permitted to withdraw the case from the jury, simply for the reason that one of his witnesses was absent, and the defendant was, on the next day, against put upon his trial for the same, identical offense.It is true that it is stated in the "case" that when the solicitor moved to withdraw the case from the jury, no objection was made by the prisoner; but it also appears in the "case" that the prisoner was not at that time represented by counsel, and it would be a harsh rule to hold that defendant consented to a withdrawal of the case from the jury simply because he interposed no objection, which, possibly, he did not know he had a right to do.Besides, consent is active, while not objecting is merely passive.The old adage, "Silence gives consent," is not true in law; for there it only applies where there is some duty or obligation to speak.State v. Edwards,13 S.C. 30;State v. Senn,32 S.C. 401, 11 S.E. 292.If it had appeared in the "case," as it does not, that the prisoner was asked whether he objected to the motion to withdrawthe case from the jury, and he had said "No," or had even remained silent, then the result would have been different.As it was, however, we think it would be going too far to hold that he consented to a withdrawal of the case.Indeed, as was said by Mr. Justice McGowan in State v. Briggs,27 S. C., at page 85, 2 S.E. 856, 857: "Were a party is put to his trial upon a criminal charge, the case must proceed in the manner prescribed by law until a verdict or a mistrial is reached.We know of no authority for suspending it for a time, or even to stop short of a verdict, except in extraordinary circumstances, such as the illness of one of the jury, the prisoner, or the court, the absence of a juryman, or the impossibility of agreeing on a verdict."It would be a fearful thing to vest in a prosecuting officer the power to stop a trial after it had commenced, simply because such officer found that he was unable to establish the charge, by reason of the absence of a witness, or a failure to prove what he had expected; for, as said by O'Neall, J., in State v. McKee, supra: "It would be, in effect, allowing to the solicitor a power which this court denies that itself possesses, of subjecting the prisoner to a new trial as often as it might be necessary to obtain a verdict of guilty."Of course, no one who knows the officer who conducted the prosecution in this case would for a moment suspect him of abusing the powers committed to him; but the court must lay down rules applicable to all cases and to all persons alike, and cannot permit such rules to be affected by the...