State v. Smalls

• Decision Date: 07 April 1882
• Citation: 17 S.C. 62
• Parties: STATE v. SMALLS.
• Court: South Carolina Supreme Court

17 S.C. 62

STATE v. SMALLS.

Supreme Court of South Carolina.

April 7, 1882

1. An indictment charged in its first count an assault with a barrel-stave with intent to kill, and in its second count an assault and battery with a barrel-stave. Held , that the assault and assault and battery charged, were of a high and aggravated nature, and therefore within the jurisdiction of the Court of General Sessions.

2. But a verdict on such indictment of " guilty of assault and battery" convicts of no offence within the jurisdiction of the Court of General Sessions, and upon such verdict that court cannot pass sentence.

3. The words " of assault and battery" in the verdict qualify the meaning of the word " guilty," and cannot therefore be rejected as surplusage, so as to make the verdict a conviction of the offence charged in the indictment.

Before HUDSON, J., Charleston, November, 1881.

Indictment against Prince Smalls. The opinion fully states the case. The report of the presiding judge was as follows:

This indictment is in due form, and charges an offence within the jurisdiction of the Court of General Sessions, setting forth the murderous intent and aggravated circumstances of the assault and battery. The proper construction of the verdict is that it finds the beating, etc., to have been done with the ugly weapon used, but not with the intent to kill. Such being the reasonable interpretation of the verdict, I refused the motion in arrest of judgment.

Mr S. J. Lee , for appellant.

Mr Solicitor Jervey , contra.

OPINION

MR JUSTICE MCGOWAN.

This was a prosecution for an assault and battery heard in this court in connection with that of Prince Bowen just decided (17 S.C. 58). The indictment contained two counts. One charged that the defendant committed an assault upon one Kit Jackson " with a deadly weapon, viz., a barrel-stave, with intent to kill and murder ," and the other with an assault and battery " with a barrel-stave ," omitting the intent to kill. The jury found the defendant " " " " guilty of assault and battery ," and he was sentenced to six months at hard labor in the state penitentiary . The defendant moved to arrest the judgment, and that being refused, appeals to this court upon the following exceptions:

" 1. Because his Honor erred in refusing to arrest the judgment on the ground that the indictment is fatally defective in that it does not charge the accused with committing an assault and battery of an aggravated nature.

2. Because his Honor erred in refusing to arrest the judgment on the ground that the verdict of the jury finds the defendant guilty only of assault and battery, of which offence the Court of General Sessions had no jurisdiction."

According to the decision just rendered in the case of the State v. Beadon (17 S.C. 55), both the counts in this indictment stated circumstances of aggravation sufficient to bring them within the jurisdiction of the Court of General Sessions. The first charged two matters of aggravation: that the assault was committed with a barrel-stave , and also with intent to kill and murder . The second charged that an assault and battery was committed with a barrel-stave , but omitted the intent to kill.

Each charged an offence of a high and aggravated nature, and therefore the defendant's first exception is not well taken. State v. McKettrick , 14 S. C. 354.

There is more difficulty as to the second exception, that the verdict shows the jury only intended to convict the defendant of a common assault and battery without aggravation , of which offence the Court of General Sessions has no jurisdiction. It is one thing to charge an offence properly, and quite another to make it out and establish it by the verdict of a jury; and until both are done the accused cannot be legally punished. Two things are necessary: the indictment must show that an offence cognizable by the court is charged, and the verdict must show that the party has been convicted of such offence .

It is not allowable in criminal matters to charge one offence and convict of another. There are...