State v. Stewart

• Citation: 1 S.E. 468,26 S.C. 125
• Parties: STATE v. STEWART.
• Decision Date: 16 February 1887
• Court: United States State Supreme Court of South Carolina

1 S.E. 468

26 S.C. 125

STATE v. STEWART.

Supreme Court of South Carolina

February 16, 1887

Appeal from circuit court, Laurens county.

Indictment for murder.

Ball & Watts, for appellant.

D. R Duncan, for respondent.

McGOWAN J.

Lewis Stewart was tried for the murder of his wife, Frances, at the June term of the court, 1886, for the county of Laurens. At a previous term of the court he had been arraigned, and put upon his trial upon the plea of "not guilty," but the jury failing to agree, a mistrial was directed. When the defendant was again placed in the dock for the offense, the circuit judge instructed the clerk that, as the prisoner had been arraigned and put to plead upon the former trial nothing remained to be done but to organize a jury. To this course no objection was made, and the jury was organized, and the prisoner put upon his trial under an indictment, which, among other things, charged as follows: "That Lewis Stewart, of the county and state aforesaid," etc., "on the seventh day of May, in the year of our Lord one thousand eight hundred and eighty-three, with force and arms, at Laurens Court-house, in the county of Laurens and state aforesaid, in and upon one Frances Stewart, in," etc., "feloniously, willfully, and of his malice aforethought, did make an assault, and that the said Lewis Stewart a certain gun, of the value of five dollars, then and there charged and loaded with gunpowder and divers leaden shot, which gun he, the said Lewis Stewart, in both his hands then and there held, to, against, and upon the said Frances Stewart, then and there feloniously, willfully, and of his malice afore-thought did shoot and discharge, and that the said Lewis Stewart, with the leaden shot aforesaid, out of the gun aforesaid, then and there, by force of the gunpowder shot, discharged, and sent forth as aforesaid, the aforesaid Frances Stewart in and upon the left side of the head of her, the said Frances Stewart, just behind the ear of her, the said Frances Stewart, then and there with the leaden shot aforesaid, out of the gun aforesaid, by the said Lewis Stewart so as aforesaid shot, discharged, and sent forth, feloniously, willfully, and of his malice aforethought, did strike, penetrate, and wound, giving to the said Frances Stewart, with the leaden shot aforesaid, so as aforesaid shot, discharged, and sent forth out of the gun aforesaid by the said Lewis Stewart, in and upon the left side of the head, just behind the ear of her, the said Frances Stewart, one mortal wound of the depth," etc., "and of the breadth," etc., "of which said mortal wound the said Frances Stewart then and there instantly died," etc.

Night came on before the trial was ended, and, the parties making no objection, the circuit judge, after carefully cautioning them as to their duty, allowed the jury to disperse until the next morning. The jury rendered a verdict of "guilty." The defendant made motions for a new trial, and in arrest of judgment, which were refused, and he now appeals to this court upon the following exceptions: "(1) Because his honor held that it was unnecessary to arraign the defendant again, he having been at a former court arraigned and put upon his trial, and a mistrial ordered. (2) Because he allowed the jury charged with the case to disperse after the testimony, and before argument closed. (3) That he did not charge the first proposition as requested, but, after reading the request, simply said 'That is a correct proposition, saving and excepting the matter of the alleged confession. This means that proposition refers to the circumstantial evidence.' He should have added, 'and I so charge.' As to proposition 2, he simply said: 'That is a fair proposition.' He should have added, ' and I so charge.' As to proposition 3, he said it was 'correct,' but did not add, 'and I so charge.' He said proposition 4 was correct if it was intended as he took it, but he did not add, 'and I so charge.' (4) In charging the jury as follows: 'If the testimony in the case points with equal force, or with any reasonable degree of force, to the guilt of a man other than the accused, then the accused ought not to be convicted; but, if the circumstances point to his guilt exclusively, why then he should be convicted, and the circumstances then would be inconsistent with any other reasonable hypothesis.' (5) In charging the jury, what the state's attorney contends is proved, and upon which he relies to convict, that it is a fact, a short time before the killing, to-wit, the latter part of the week preceding Monday night, May 7th, he prepared himself to do the deed. (6) That the judgment should be arrested because the indictment does not allege, as in law it should, the time and place when and where the alleged mortal stroke was given."

1. As to the motion in arrest of judgment: It is urged that there is a patent defect in the indictment, in that it does not allege "the time and place" when and where the mortal stroke was given. It may be true that in an indictment for murder it is necessary to allege time and place in respect to every issuable and triable fact. See State v. Coleman, 17 S.C. 474. But it seems to us that in this case there was no violation of the rule. The indictment clearly charged the time and place of the assault, which was by a shot from a gun, viz., on May 7, 1883, and at Laurens Court-house, in the county of...