State v. Scott

• Citation: 15 S.C. 434
• Decision Date: 01 July 1881
• Docket Number: CASE No. 1059.
• Court: United States State Supreme Court of South Carolina
• Parties: STATE v. SCOTT.

15 S.C. 434

STATE

v.SCOTT.

CASE No. 1059.

Supreme Court of South Carolina.

Jul. 18th, 1881.

1. Several distinct felonies by the same persons may be joined in the same indictment; where they all grow out of the same transaction they may be tried together, but the jury should be instructed as to the effect of a general verdict of guilty; where they do not grow out of the same transaction, it is the duty of the court to requfre the presiding officer to select one of the felonies and confine himself to that.

2. This case distinguished from State v. Fant, 2 Brev. 487.

3. The Circuit judge committed no error in saying to the jury, that if the testimony of the accomplices, witnesses for the state, was corroborated as to one of the defendants, that this would warrant the jury in finding all of the defendants guilty.

4. There being in the indictment counts for arson, burglary and grand larceny, an arrest of judgment for arson does not operate to arrest the judgment on the other counts, but, there being a general verdict of guilty, furnishes good ground for a new trial.

5. Evidence that an accomplice had stated out of court that which he had sworn upon the stand, would not be corroboration of his testimony, and is incompetent.

Before THOMSON, J., Hampton, October, 1880.

Indictment against Asa Scott and five others for arson, burglary and grand larceny. The opinion states everything that is to be learned from the meagre brief in this case.

Mr. W. P. Murphy, for appellant, cited 4 Humph. 194;2 McLean 325; 10 Ga. 46; 29 Ala. 62; Roscoe's Cr. Ev. 122, 123, 188; 11 S. C. 275; 3 Strob. 523, note; 1 Metc. 13; 14 S. C. 628;7 S. C. 283;14 Rich. 169.

Mr. Solicitor Gantt, contra, cited Archb. Cr. Pl. 30; 1 McM. 190;7 Rich. 490;3 Hill 1;Cheves 105; 9 Rich. 355;14 Id. 169;Whart. on Am. Cr. L. 151, 302; 4 Strob. 270;10 S. C. 191;11 S. C. 196.

The opinion of the court was delivered by

MCIVER, A. J.

The indictment in this case contained a count for burglary, a count for arson and a count for grand larceny. The jury rendered a general verdict of guilty, upon which the defendants moved, before the Circuit judge, to arrest the judgment and for a new trial, substantially upon the following grounds:

1. Because there was an improper joinder of offences in the indictment.

2. Because the judge erred in instructing the jury that where two or more persons are on trial and the testimony of an accomplice is relied on, which is corroborated as to one of the accused and not as to the others, this will warrant the jury in finding all of the defendants guilty.

These motions were refused by the Circuit judge, except so far as the motion to arrest the judgment for arson was concerned, which was granted, whereupon the defendants appeal upon the grounds above stated, and upon the additional grounds that the arrest of the judgment for arson operates as an arrest of the whole judgment; and that the testimony of C. L. Peeples, to the effect that he had heard the two accomplices, who were introduced as witnesses by the state, make the same statements, out of court, not in the presence of the accused, that they made while on the stand.

First, as to the question whether the offences named can be joined in the same indictment. The rule upon this subject seems to be that there is no valid objection to the joinder of several distinct felonies in the same indictment, and that such joinder constitutes no ground for demurrer or motion in arrest of judgment. 1 Chitty on Cr. L. 253; Young v. King, 3 T. R. 98; State v. Johnson, 3 Hill 1;State v. Tidwell, 5 Strob. 1;State v. Nelson, 14 Rich. 172. But where the several felonies charged all grow out of the same transaction, the jury should be distinctly instructed as to the effect of a general verdict of guilty, which is understood to find the highest offence charged, if there is testimony to support it, in order that they may shape their verdict so as to conform to their real convictions by finding upon each count separately. State v. Nelson, supra; State v. Priester, Cheves 105. If, however, distinct felonies are charged in separate counts, not growing out of the same transaction, then the proper practice is to require the prosecuting officer to select one of the felonies and confine himself to it, even though no motion to that effect should be made by the accused. State v. Nelson, supra.

The case of State v. Fant et al., 2 Brev. 487, though, at first view, somewhat in conflict with these views, is not really so. In that case Fant was indicted, as keeper of a tavern, for allowing the other defendants to game in his house, and the others were indicted for gaming, the punishment in the former case being a fine of $50, and in the latter case a fine of $25. So that in Fant's case there were not only different offences joined in the same indictment, but different persons were charged with different offences in the same indictment. It does not distinctly appear whether the defendants were all charged in the same count, but the inference is that they were, for the statement is: “The defendants were all included in one indictment, which did not state any particular place where the offences were committed.” The judgment was arrested by the Circuit judge “because two distinct offences were laid in the same indictment,” and all that is said upon this point by the Court of Appeals is: “The judgment was properly arrested on the first ground of objection to the conviction. The offences are distinct, different in their nature, and admitting of different degrees of punishment, and ought not to have been combined in the same indictment.”

The probability is, as we have said, that there was but one count in the indictment, but even had there been two, the case would not be decisive of the one now under consideration, for in that case different persons were indicted for different offences in the same indictment, while here the same persons are charged in different counts of the same indictment with different offences; and the court in Fant's case, which was an indictment for misdemeanor, certainly could not have intended to decide that the same persons could not be charged in different counts of the same indictment with different misdemeanors, as that would be opposed to the current of the authorities.

In this case it does not appear whether the felonies charged all grew out of the same act, for although it is asserted in the argument that such was the fact-that the building was broken into, robbed and then set fire to-yet as these facts do not appear in the “case” as prepared for argument here, we cannot regard them as entering into the case which we are called upon to decide. It does not appear, however, either that any instruction was given to the jury to shape their verdict so as to show what particular felony they intended to find the prisoners guilty of, or that the prosecuting officer was required to elect upon which count he would proceed, and, therefore, we think there should be a new trial.

The next inquiry is, whether the Circuit judge erred in saying to the jury that if the testimony of the accomplices was corroborated as to one of the defendants, this would warrant the jury in finding all of the defendants guilty. It seems to be very well settled that the testimony of an accomplice is competent, but that the usual practice is for the presiding judge to advise the jury not to convict upon the uncorroborated testimony of an accomplice. 2 Stark. on Ev. 23, 24; Roscoe on Cr. Ev. 120, 121; 1 Greenl. on Ev., § 380; State v. Wingo, 11 S. C. 275, note. But these authorities also show that it is not necessary that the accomplice should be corroborated in every particular;...