State v. Shirer

• Decision Date: 23 February 1884
• Citation: 20 S.C. 392
• Parties: STATE v. SHIRER.
• Court: South Carolina Supreme Court

20 S.C. 392

STATE

v.SHIRER.

Supreme Court of South Carolina.

Feb. 23d, 1884.

1. To quash an indictment is not a proceeding as of right; but the motion is addressed to the discretion of the court, and, generally, the decision of the presiding judge is not open to review on appeal.

2. The provision in the United States constitution that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb” applies only to offenses and trials under the laws of the general government.

3. In a trial for larceny there was a mistrial. At the next term, the former indictment was marked nolle prosequi, and a new bill found. Held, that defendant was not entitled to his discharge under a plea of autrefois acquit.

4. Under the express terms of the constitution of this State, that “no person, after having been once acquitted by a jury, shall again, for the same offense, be put in jeopardy of his life or liberty,” which provision was intended to be exclusive and exhaustive, a party cannot plead a former jeopardy in bar of the prosecution unless he has been acquitted by a jury.

5. The general rule in framing an indictment is, that the offense shall be so described that the defendant may know how to answer it, the court what judgment to pronounce, and that a conviction or acquittal on it may be pleaded in bar to any other indictment for the same offense.

6. The act making breach of trust with fraudulent intent larceny, applies, not only to cases which the common law did not reach, but also to cases where a fraudulent appropriation did constitute larceny at common law, as, e. g. money taken by a clerk to whom it was intrusted, but which, technically, was in the possession of his employer.

7. In an indictment for breach of trust with fraudulent intent, ownership of the property must be alleged with the same accuracy and after the same rules as in common law larceny; this was substantially done in this indictment.

8. In describing the money taken as “the sum of three hundred and ninety-five dollars, lawful currency of the United States, of denomination and issue to the jurors aforesaid unknown,” the indictment sufficiently individualized the transaction, although it omitted to charge the “kind of currency.”

9. In criminal cases, this court cannot review questions of fact passed upon in the court below.

Before WALLACE, J., Orangeburg, May, 1883.

This was a prosecution against George S. Shirer for breach of trust with fraudulent intent, and larceny, in taking money out of the safe of Banks & Smith, by whom defendant was employed. The defense was, that defendant was called out of his house after midnight, and then taken and tied by two men, who forced him to tell them the combination of the safe-lock. The opinion states the case.

The ruling of the presiding judge upon the motion to quash and the motion for new trial and in arrest of judgment and upon the demurrer, need not be given. His charge to the jury was as follows:

We have a statute that is in these words: “Any person committinga breach of trust with a fraudulent intent, shall be held guilty of larceny.” The defendant stands charged under that statute. He stands further charged with the offense of larceny at common law. You have heard the testimony. You have heard that testimony discussed by experienced and able counsel. You are to collect from that testimony the truth of the facts. It is for that purpose in our courts that juries are organized. The law devolves upon me the duty of explaining to you the nature of the offenses with which the defendant stands charged. Then your duty is to apply the truth of the facts to those rules that I will state to you and to draw your conclusion whether, or not, those offenses have been committed by this defendant.

There are four counts in the indictment. The first count charges a breach of trust under the statute that I have read to you. Now, what is a breach of trust? Before there can be a breach of trust there must be a trust. Now what is a trust, in the sense in which that word is used in this statute? A breach of trust is where personal property of appreciable value and of which larceny may be committed is put into the possession of another; and when it is so put into his possession it becomes a trust, and while it so remains, if he conceives the purpose to convert that property to his own use, and does it with intention to deprive the owner of the use of that property, then that is a breach of trust with a fraudulent intent.

Now I will point out to you presently how that differs from stealing-from larceny at common law. There must be in the possession of the defendant charged, a sum of money in this case, either bank bills, or gold, or silver coin, or both, the property of Messrs. Banks & Smith. It must be in his possession-in his entire and complete possession. He must not share the possession with anybody else. If you should find, in this case, that money belonging to these prosecuting witnesses was in the possession of this defendant, and that he converted it to his own use, intending to deprive them of it, then that would be a breach of trust with fraudulent intent.

Now, in any one of the stores in this town, there may be proprietors and clerks-there may be in the store-room where the money is put, a drawer, and to which everybody, who has a right to be there and participate in the transactions of the business, has a right to go. That money is not in the possession of the clerks, but in the possession of those to whom it belongs. But if those to whom it belongs should take that money or any part of it and put it in the hands of the clerk and send him to Charleston to buy goods with it for them, then it is in the possession of the clerk, and if under those circumstances he converts it to his own use, that is a breach of trust. You will see, therefore, to sum up on this subject, that there must be money in the possession of this defendant, belonging to these prosecuting witnesses, and that after it is in his possession he has converted it to his own use in order to find a verdict of guilty on the first count. Do the facts as ascertained from the testimony satisfy you, beyond a reasonable doubt, of the existence of that state of things? If so, you must find the defendant guilty on the first count. If not so, you must acquit him on the first count.

Now there are three other counts, all relating to the crime of larceny at common law. What is larceny at common law? It is the taking and carrying away of the goods or chattels of another with the intention to convert them to the taker's use. In that case, he takes goods that are not in his possession at the time of the conception of the fraudulent intention, and that is the distinction between larceny and breach of trust. In one case the goods are already in his possession and in the other case, to make out larceny, the goods are not in his possession until he feloniously takes them. Did this defendant do that? Are you satisfied from the testimony that he did do it-that he feloniously took the money, either greenbacks, gold or silver coin, or both, from the possession of Messrs. Banks & Smith, and converted it to his own use. If so, convict him of larceny. If you are not so satisfied, acquit him of larceny.

You will observe that in regard to the facts in this case I have not said one word to you. To say what degree of force and effect to attach to the statements of the witnesses-to say what is credible and incredible, is a matter which the law devolves entirely upon you, and prohibits the presiding judge to give his opinion on that subject. My duty is to declare the legal rules involved in the charges. You decide from the testimony whether those charges have been made out to your satisfaction beyond a reasonable doubt. If they have been, you must convict the defendant. If they have not been, you must acquit him. Whenever a defendant is charged in this court with a crime against the laws of this State, he comes into court under the presumption of innocence. Whenever he is arraigned at that bar he is under the legal presumption of innocence, and he stands an innocent man and must go an innocent man, unless that presumption is removed by the testimony adduced against him, to the extent of satisfying the jury beyond a reasonable doubt, of his guilt. He does not have to establish his innocence. There could be no phase of any criminal case in South Carolina where the obligation is upon the defendant to establish his innocence. He is an innocent man and is entitled to an acquittal until the testimony establishes his guilt beyond a reasonable doubt. But whenever the testimony reaches that point of establishing his guilt beyond a reasonable doubt, then all presumptions of innocence fade out of the case and stand no longer as a shield and protection against the charge of the crime.

So if you should think the defendant is guilty of a breach of trust committed with a fraudulent intent, if the testimony satisfies you of that beyond a reasonable doubt, say guilty on the first count. If you are not so satisfied, say not guilty on the first count. If you are satisfied from the testimony that the defendant is guilty of grand larceny-that is, of having stolen money, either bills or coin, or both, to an amount above $20, say guilty of grand larceny. If the proof does not satisfy you that he is guilty beyond a reasonable doubt of either breach of trust or larceny, say not guilty generally.

The jury having failed to agree, and being sent for by the court, were asked if they desired to have the testimony read to them or any further instructions as to the law. At the request of jurors, extracts of testimony were read, and, in response to a request from a juror for further instruction as to the difference between breach of trust and larceny, the court charged as follows: If Mr. A. is in possession of personal property of his own, and B. takes the property away...