State v. Rountree

• Decision Date: 27 June 1908
• Citation: 61 S.E. 1072,80 S.C. 387
• Parties: STATE v. ROUNTREE et al.
• Court: South Carolina Supreme Court

61 S.E. 1072

80 S.C. 387

STATE v. ROUNTREE et al.

Supreme Court of South Carolina

June 27, 1908

Appeal from General Sessions Circuit Court of Barnwell County; R. W Memminger, Judge.

I. W Rountree and another were convicted of receiving stolen goods, and they appeal. Reversed and remanded.

C. A Best and Bates & Simms, for appellants.

James E. Davis and P. T. Hildebrand, for the State.

GARY A. J.

The appellants, I. W. Rountree and James F. Rountree, were found guilty of receiving stolen goods, knowing them to be stolen under an indictment against them and Jim Stevens, containing two counts, the first charging grand larceny against the three defendants, and the second charging the two defendants, I. W. Rountree and James F. Rountree, with receiving stolen goods, knowing them to be stolen. At the commencement of the trial, and before the introduction of testimony, a motion was made to require the solicitor to elect upon which of the two counts he would rely, as the defendants contended they were inconsistent. His honor refused to require the solicitor to make his election at that time, but, after the testimony in behalf of the state was introduced, ruled that he must elect upon which count he would proceed, whereupon the solicitor announced that he would rely upon the second count. A motion was then made to direct a verdict, on the ground that there was no evidence sufficient to convict upon the second count, but it was overruled. The defendants I. W. Rountree and James F. Rountree thereupon proceeded to introduce their testimony.

The first question that will be considered is whether his honor the presiding judge, erred in refusing to compel the solicitor to elect upon which count he would proceed, when the motion was first made. "If different felonies or misdemeanors be stated in several counts of an indictment, no objection can be made to the indictment on that account in point of law. In cases of felony indeed the judge, in his discretion, may require the counsel for the prosecution to select one of the felonies, and confine himself to that. That is what is technically termed 'putting the prosecutor to his election.' But this practice has never been extended to misdemeanors. We have seen, however, that where a count for larceny and a count for receiving the same goods are joined in the same indictment, the prosecutor shall not be put to his election." 1 Archbold's Cr. Pr. & Pl. 295-298. "A motion to compel the state to elect upon which count it will proceed is addressed to the sound discretion of the court, as a general rule, and its action thereupon will not be interfered with, unless the discretion has been used to the manifest injury of the defendant. *** It appears from many cases that an election will not be compelled when the transaction is the same, and the same offense is set out in different modes, or the several counts refer to the same acts and transactions; and it has been said that only the improper joinder of counts can give the court the right to compel the election." 10 Enc. of Pl. & Pr. 551, 552. " If really distinct felonies be charged in separate counts of an indictment, no objection in point of law can be made on this account. But it is a proper exercise of the discretion of the judge, in such case, to require the prosecuting officer to select one of the felonies, and confine himself to it." State v. Nelson, 14 Rich. Law, 169, 94 Am. Dec. 130. There was no necessity for compelling the solicitor to make his election at any time in this case, as a general verdict, under proper instructions, would not have been a ground for a new trial or in arrest of judgment. State v. Smith, 18 S.C. 149. The foregoing authorities show that the ruling of the presiding judge was more favorable to the appellants than they could demand as a legal right, and that the exception raising this question...