State v. Sowell

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

67 S.E. 316

85 S.C. 278

STATE v. SOWELL et al.

Supreme Court of South Carolina

March 17, 1910

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. Giant, 104 N.C. 908, 10 S.E. 554; People v. O1dham, 111 Cal. 648, 44 P. 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; State v. Scott, 15 S.C. 434; State v. Prater, 26 S.C. 198, 613, 2 S.E. 108; State v. Green, 48 S.C. 136, 26 S.E. 234. With regard to the testimony of an accomplice the court instructed the jury, in part, as follows: "Human experience has found that the testimony of a man who says that he is the accomplice of somebody else in crime--that is, that he is a confessed criminal--is not testimony of the highest credibility because it comes from a person confessing that he is guilty of committing a crime, and only needs the judgment of the law that he is a felon to debar him from giving testimony. The testimony of a person of that sort must come with more or less doubt as to the worthiness of the party who makes it to credence, to belief. So, as I said, the experience of ages in the administration of the law and the examination of questions of fact is that it is not a safe thing for juries to convict on the unsupported testimony of an accomplice. Yet it is wholly a matter for the jury. If you had no other testimony but that of the accomplice, and you believe it, are satisfied beyond all reasonable doubt by it, it is perfectly competent for you to convict on that sort of evidence. If the testimony of the accomplice is corroborated by other evidence, as a matter of course it becomes very much stronger. If it lacks corroboration, it is weak, according to human experience." This charge was too favorable to appellants. Previous to the adoption of the Constitution of 1868 the judges had the power to charge juries with respect to the facts, as well as the law. The practice then prevailed, as it did in England and in nearly all the states where the common law powers of the judges had not been restricted by the Constitution or statutes, for the judge to advise the jury that it was not safe to convict upon the uncorroborated testimony of an accomplice. But, even then, if the testimony of the accomplice satisfied the jury of the guilt of the accused beyond a reasonable doubt, and, notwithstanding the caution of the judge, they returned a verdict of guilty, it was held to be legal. State v. Brown, supra. This rule of practice was so well settled and uniformly followed that it has been continued to the present time, notwithstanding the provision of the Constitution of 1868 (article 4,§ 26) that "judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law," and the still greater restrictive provision of the Constitution of 1895 (article 5, § 26) that "judges shall not charge juries in respect to matters of fact, but shall declare the law," upon the assumption, we suppose, that it is a rule of law.

The practice of so advising juries has beer incidentally before the Supreme Court in several cases tried under the Constitutions of 1868 and 1895, and in some of them it seems to have received the sanction of the court. State v. Scott, 15 S.C. 434; State v Prater, 26 S.C. 198, 613, 2 S.E. 108; State v. Lee, 29 S.C. 113, 7 S.E. 44. In Green's Case, 48 S.C. 136, 26 S.E. 234, the right of the trial judge to so advise the jury was seriously questioned. In Mearses' Case, 60 S.C. 527, 39 S.E. 245, the right of the defendant to have the judge so instruct the jury was denied. The question whether the judge...