State v. Smith

• Decision Date: 25 October 1882
• Citation: 18 S.C. 149
• Court: South Carolina Supreme Court
• Parties: STATE v. SMITH.

18 S.C. 149

STATE

v.SMITH.

Supreme Court of South Carolina.

Oct. 25th, 1882.

Where several distinct offenses are charged in different counts of an indictment, all growing out of the same act or acts, even though subject to different punishments, a general verdict of guilty furnishes no ground for a motion in arrest of judgment or for new trial, provided the jury have been explicitly instructed as to the form and effect of their verdict.

Before ALDRICH, J., Anderson, February, 1882.

This was a prosecution against Sherman Smith and four other defendants. The opinion fully states the case.

Mr. W. C. Benet, for appellants.

Mr. Solicitor Orr, contra.

The opinion of the court was delivered by

MR. JUSTICE MCIVER.

The indictment in this case contains three counts. The first charges that the defendants “did unlawfully, willfully and maliciously and feloniously set fire to the county jail;” the second, that they “did unlawfully, willfully, maliciously and feloniously set fire to the dwelling-house of James H. McConnell;” and the third, that the defendants “did willfully, unlawfully and maliciously mutilate, deface and injure the house, that is to say, the jail of Anderson county, upon real estate in the possession of James H. McConnell.” The first two counts, therefore, charge a felony, and the third a misdemeanor.

The Circuit judge, in his charge to the jury, explained the different counts and the effect of a verdict on them, saying: “If they found the prisoners guilty of arson-defining it-they should find them guilty generally; if they did not find them guilty of arson, but of malicious injury, they should write, “not guilty as to the first and second counts, guilty as to the third count.' If they should find them not guilty of any of the counts, they should say, ‘not guilty.’ That if they found the prisoners guilty, they could recommend them to mercy.” The jury returned a general verdict of guilty, with a recommendation to mercy, whereupon the defendants made a motion in arrest of judgment and for a new trial upon two grounds, which being refused, they now, by this appeal, renew these motions upon the same grounds. As the second ground was abandoned at the argument in this court, it will only be necessary to state the first, which is as follows: “Because his Honor erred in holding that the verdict of guilty, generally, upon an indictment containing a charge of felony, and a count in the same indictment charging a misdemeanor, when the penalties were different, was not a ground for a new trial.”

It must be conceded that it is somewhat difficult to reconcile the decisions in this State upon the point presented by this appeal, and we simply propose, after reviewing the cases, to deduce from them what we understand to be the rule upon this subject.

In State v. Montague, 2 McC. 257, the indictment was for a misdemeanor, and contained two counts, but what those two counts were does not appear. All that is said upon this branch of the case is: “There are two distinct counts in the indictment, each charging the prisoner with a different and distinct offense, for each of which offenses the law has provided a different and distinct punishment. A general verdict of guilty does not show of which offense he was guilty. The judgment of the court, therefore, cannot be pronounced.” A new trial was accordingly granted. In the opinion no authority is cited and no reasoning employed except what has just been quoted. It does not appear that the jury were instructed so to shape their verdict as to indicate which of the two offenses they believed the party charged to be guilty of, nor as to the effect of a general verdict.

In State v. Crank, 2 Bail. 66, the defendant was indicted for murder. In the first count he was charged with having struck the mortal blow, in the second with having been present aiding and abetting another who struck the mortal blow, in the third and fourth he was similarly charged, only varying the name of the person charged with striking the mortal blow, and in the fifth count he was charged as accessory before the fact. There was a general verdict of guilty, and one of the grounds of the motion in arrest of judgment was, that, under a general verdict upon such an indictment, no judgment could be pronounced, as the court could not know whether the intention of the jury was to find the prisoner guilty of murder in the first or second degree, or of being an accessory before the fact. The court held that the motion could not be sustained, saying: “If, therefore, several felonies of the same degree be included in the same indictment and there is a general verdict, judgment may be given on any or all of them, according as they may have been supported by the proof.” It will be observed that the material difference between Crank's case and the foregoing one is that in the latter case the punishment was the same under all of the counts, while in Montague's case it was different.

In State v. Priester, Cheves 103, Judge Earle, in delivering the opinion of the court, lays down this doctrine, that two distinct offenses with different penalties may be embraced in the same indictment; “but,” he adds, “care must be taken to have the verdict framed so as to secure the several counts.” This, however, is a mere dictum, inasmuch as in that case the indictment was for unlawfully trading with a slave under the act of 1817, and in one count the defendant was charged with buying corn from a slave, and in the other with selling liquor to the same slave, it being all the same transaction, the liquor having been delivered to the slave in exchange for the corn. And upon a general verdict, the court, on a motion in arrest of judgment, held that there was no misjoinder of two offenses, but that it was the same offense charged in different forms.

In State v. Anderson, 1 Strob. 455, the indictment contained two counts, one, under the act of 1834, charging the defendant, as a vendor of spirituous liquors, with delivering liquor to a slave; the other, under the act of 1817, charging the defendant with unlawfully trading with a slave, both charges growing out of the same transaction. There was a general verdict, and the defendant moved in arrest of judgment and for a new trial on the ground, inter alia, that no judgment could be rendered upon such a verdict where the indictment contained two counts, charging different and distinct offenses and punishable differently. The court held that while this afforded no ground for arresting the judgment, yet it did furnish good ground for a new trial, and granted that motion. The reason given seems to have been that, while different offenses might be joined in the same indictment, though not in the same count, yet, on a general verdict, the court would not know on which count to pass sentence. In this case, also, it does not appear that the jury were instructed as to the effect of a general verdict, or...