State v. Sowell

• Court: United States State Supreme Court of South Carolina
• Citation: 67 S.E. 316,85 S.C. 278
• Parties: STATE v. SOWELL et al.
• Decision Date: 17 March 1910

67 S.E. 316
85 S.C. 278

STATE
v.
SOWELL et al.

Supreme Court of South Carolina.

March 17, 1910.

1. Criminal Law (§ 401^*)—Evidence—Best Evidence—Corporation Existence.

The best evidence rule does not apply to proof of the de facto existence of a corporation, alleged to be the owner of a storehouse which defendants were charged with breaking and entering; parol evidence being admissible to prove such corporate existence.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 884; Dec. Dig. § 401.*]

2. Burglary (§ 41*)—Breaking and Entering — Ownership — Corporations — De Facto Existence.

Though on trials for larceny, the ownership of property must be correctly alleged, and proved as alleged, such allegation is merely descriptive of the offense, and in a prosecution for breaking and entering with intent to steal, an allegation that the storehouse entered belonged to a corporation was sufficiently established by proof of the de facto existence of the corporation.

[Ed. Note.—For other cases, see Burglary, Cent. Dig. § 102; Dec. Dig. § 41.*]

3. Criminal Law (§ 508*) — Accomplices — Uncorroborated Evidence.

Uncorroborated evidence of an accomplice may be sufficient to sustain a conviction if it satisfies the jury of the guilt of accused beyond a reasonable doubt.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1111; Dee. Dig. § 508.*]

[67 S.E. 317]

4. Criminal Law (§ 742^2-*)—Instructions — Weight of Evidence—Accomplices—Uncorroborated Evidence.

Under Const. 1895, art. 5, § 26, prohibiting judges from charging concerning matters of fact, and requiring the weight of testimony to be left exclusively to the jury, it was improper for a judge to charge that it was unsafe to convict on the uncorroborated evidence of an accomplice, or that such evidence is lacking in weight or sufficiency.

[Ed. Note.—For other cases, see Criminal Law. Cent. Dig. §§ 1138, 1720; Dec. Dig. § 742.*]

5. Indictment and Information (§ 160*)— Amendment—Variance.

Cr. Code 1902, § 145, provides that every person who shall break and enter, or who shall break with intent to enter in the daytime any dwelling house or other house, or who shall break and enter, or who shall break with intent to enter in the nighttime any house, etc., shall be guilty of a felony, and section 58 permits the amendment of any defect of form in any indictment, provided the amendment would not change the nature of the offense charged. Held, that breaking and entering in the day and in the night time were distinct offenses, so that where accused was charged with breaking and entering in the daytime, and the evidence showed that the breaking and entering was in the nighttime, the indictment could not be amended to conform to the proof, but the variance was fatal.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 512, 515; Dec. Dig. § 160.*]

Appeal from General Sessions Circuit Court of Lancaster County; J. C. Klugh, Judge.

John Sowell and others were convicted of breaking and entry, and they appeal. Reversed.

Dunlap & Dunlap, for appellants.

J. K. Henry, Sol., for the State.

HYDRICK, J. The indictment charged the defendants with breaking and entering the storehouse of the Kershaw Grocery Company, a corporation under the laws of this state, in the daytime, with intent to steal.

Parol testimony of the de facto existence of the corporation was properly admitted. The rule requiring the production of the best evidence to prove a fact in issue has some exceptions; one of them is that a matter which is merely collateral to the main issue may be proved by secondary evidence. On trials for larceny the ownership of the property must be correctly alleged, and proved as alleged. The reason for the rule is that the defendant may be able to plead the judgment in bar of a subsequent indictment for the same offense. The allegation of ownership is therefore merely descriptive of the offense. Hence proof of the de facto existence of the corporation, and its possession and ownership of the property, was sufficient for the purpose indicated. In Smith v. State, 28 Ind. 322, the court said: "A de facto existence of the corporation was only necessary to be shown. Surely the property of corporations not lawfully organized, though existing in fact, is not to be declared by this court the legitimate prey of thieves, to be appropriated without criminal responsibility, unless overwhelming authority compels us so to declare." See, also, State v. Grant, 104 N. C. 908, 10 S. E. 554; People v. Oldham, 111 Cal. 648, 44 Pac. 312; Braithwaite v. State, 28 Neb. 832, 45 N. W. 247.

Amos Clark, the principal witness for the state, was an admitted accomplice, whose testimony was uncorroborated, at least as to the guilt of two of the appellants, who assign error to the court in refusing to direct a verdict of acquittal, because the testimony of Clark was uncorroborated, and in not instructing the jury that they could not convict on his uncorroborated testimony. If the uncorroborated evidence of an accomplice satisfies the jury of the guilt of one on trial, beyond a reasonable doubt, they may convict upon such testimony. State v. Brown, 3 Strob. 508;...