State v. Robinson

• Decision Date: 23 October 1889
• Citation: 10 S.E. 101,31 S.C. 453
• Parties: STATE v. ROBINSON.
• Court: South Carolina Supreme Court

10 S.E. 101

31 S.C. 453

STATE v. ROBINSON.

Supreme Court of South Carolina

October 23, 1889

Appeal from general sessions circuit court of Barnwell county PRESSLEY, Judge.

James E. Davis, for appellant.

MCGOWAN J.

The defendant was tried at the July term, 1888, for Barnwell county, for an assault with intent to kill, alleged to have been committed on the person of one Felix Furman. The indictment charged as follows, viz.: "That Thomas Robinson, late of the county aforesaid, (Barnwell,) on the 4th day of May, in the year of our Lord one thousand eight hundred and eighty-eight, (1888,) with force and arms, etc in and upon Felix Furman, in the peace of God and the said state then and there being, did make an assault, and he (said Felix Furman) then and there, with a certain pistol, did shoot at, with intent him (the said Felix Furman) then and there, feloniously, willfully, and of malice aforethought, to kill and murder, and other wrongs, to the said Felix Furman then and there did, to the great damage of the said Felix Furman, against the form of the statutes in such case made and provided, and against the peace and dignity of the same state aforesaid," etc. The defendant pleaded not guilty and the jury found a verdict of "guilty of an aggravated assault and battery." The presiding judge refused a motion to arrest the judgment, and pronounced sentence as for "an assalt of a high and aggravated nature," etc., under the statute, and the defendant appeals, renewing here his motion in arrest of judgment on the grounds: "(1) In that the indictment charged an assault with intent to kill, by shooting at one Felix Furman, and there is no allegation of any battery; hence a verdict of 'aggravated assault and battery' is unsupported by any allegation in the indictment. (2) For that the defendant could not be convicted of "aggravated assault and battery," there being no count in the indictment charging him with that offense; and, as the indictment does not charge a battery, it is respectfully submitted that he was not called upon to meet it, and therefore the judgment should be arrested." It is quite clear that the indictment charged an offense cognizable by the court, viz., an assault with intent to kill, by discharging a pistol at the person of Felix Furman. The verdict of the jury, however, went beyond the charge, and found the defendant guilty of something more,--a battery. No battery was charged in the indictment, and to that extent the verdict was unsupported. But does that necessarily make the whole verdict bad,--so unauthorized and irregular as to require the court to arrest the whole judgment, including, also, the conviction for assault, which was well charged? We can hardly think so. It is within the province of the court to construe a verdict, which, "being 'the finding of lay people,' need not be framed under the strict rules of pleading, or after any technical form. Any words which convey the idea to the common understanding will be adequate." Surplusage which is harmless may be stricken from a verdict the same as from pleadings. 1 Bish. Crim. Proc. § 1005 a. It seems the rule is that words will not be stricken from a verdict as surplusage if the matter so rejected affects the sense of the part which still remains, or, as stated in case of Weikman v. City Council, 2 Speer, 371: "It is only where a verdict, before certain and valid, according to a fair construction, has been cumbered by the addition of useless matter, not qualifying the previous meaning, that the addition can be rejected as surplusage." Here "an assault" was in terms alleged, and so found; and the unauthorized finding of a "battery" was simply additional,--supplemental,--and in no way qualified the previous meaning and finding of the "assault," and, as it seems to me, could be struck out, leaving the verdict as if has been rendered above for an assault of a high and aggravated nature. An assault is a separate and distinct thing from a battery, and why may not a finding be good as to the one and bad as to the other, especially where the latter is bad only for the reason, that it was not charged in the indictment? It seems to us that it would be a strange and overtechnical result if the addition to a verdict of authorized expressions, utterly without force for any other purpose, should yet be construed to have the effect of destroying altogether a verdict otherwise good and valid, or to the extent than it is perfect. Assuming, then, that the words "and battery" were properly disregarded as surplusage, we must consider the verdict as if it had been rendered "guilty of an aggravated assault."

But in this view it is further urged that this was not the very offense with which the defendant was charged in the indictment, the offense charged being an assault with intent to kill, and that found being an assault of a high and aggravated nature. We think the offense found was charged and included in the body of the charge of assault with intent to kill, as the charge of manslaughter is embraced in the charge of murder. It is true that with special reference to the jurisdiction of the court our statute does speak of "assaults and batteries and other breaches of the peace of a high and aggravated nature." Gen. St. § 824. But we do not understand that the purpose was to create a new and distinct offense of that character; but, rather, to indicate a class of cases of which the court of general sessions had jurisdiction. See State v. McKettrick, 14 S.C. 354. There is, as we conceive, nothing in the verdict, with the surplusage stricken out, which is inconsistent with the offense charged. As it seems to us, the terms used in the statute, "assaults of a high and aggravated nature," adopted by the jury in framing their verdict, were not inappropriately used to express the grade of an assault less than one "with intent to kill," which most certainly is one of "a high and aggravated nature." Now, if (as we have a right to do) we supplement the verdict (the surplusage being stricken out) by the formal and technical words "in manner and form as set forth in the indictment," it will clearly appear that the verdict, though finding a less offense than the one charged, was in precise response to the issue made, and sufficient to support the "judgment." "In general, verdicts modo et forma, being merely technical words, may be supplied; for, the inquiry of the jury being properly confined to the facts which are comprised in the issue, it must be intended that whatever facts may be found are according to the allegations made, unless a different intention can be inferred from the verdict." Weikman v. City Council, 2 Speer, 375; Com. v. Judd, 2 Mass. 329.

If however, the words of the statute in reference to "assaults of a high and aggravated nature" must be considered as creating a new and different offense, of which the jury convicted the defendant, then, that offense being of the same general character, but of lower grade than that charged in the indictment, we do not see why the jury could not, under the charge of assault with intent to kill, find an assault of lower grade, --as, for instance, one without the intent to kill, or of a high and aggravated nature,--upon the plain principle that the lesser is included in the greater, the charge of which includes also the charge of the lesser offense, as in murder and manslaughter. See 1 Bish. Crim. Proc. §§ 1001-1016; and State v. Gaffney, Rice, 433; State v. Wilburne, 2 Brev. 296, and State v. Creighton, 1 Nott & McC. 256, both cases as to the finding of a grand jury, in which it was held that the grand jury must find " billa vera" or " ignoramus," and nothing more. These cases have no application here. The case from Rice, supra, was in reference to the proper construction of the statute of 1821, making it murder to kill a slave with malice aforethought, and also creating a new statutory offense of "killing in sudden, heat and passion." In delivering the judgment of the court, Judge EARLE said: "The general rule is, when an accusation includes an offense of inferior degree, the jury may discharge the defendant of the higher crime and convict him of the less atrocious. *** We conclude, therefore, that under the act the greater offense includes the lesser, to the same extent and for the same reason that murder includes manslaughter at the common law. *** It is supposed, however, to be at variance with the rule of criminal pleading, which requires statutory offenses to be set forth precisely in the words of the act. In point of fact the charge of murder is set forth sufficiently. The true objection is that killing in sudden heat and passion is not laid in the indictment, and therefore ...