State v. Strickland
| Decision Date | 21 September 1878 |
| Citation | 10 S.C. 191 |
| Parties | STATE v. STRICKLAND. |
| Court | South Carolina Supreme Court |
A count for burglary, which is a felony, and a count for receiving stolen goods, which is a misdemeanor, may be joined in the same indictment.
A count in an indictment for grand larceny which does not conclude against the form of the statute, & c., or against the peace and dignity of the State, & c., is fatally defective.
BEFORE NORTHROP, J., AT ANDERSON, SEPTEMBER TERM, 1877.
This was an indictment against William B. Strickland and two others. William B. Strickland was found guilty on the second count. He moved in arrest of judgment, and, the motion having been refused, he appealed to this Court.
The opinion of the Court contains everything that is necessary to a full understanding of the case.
McGowan & Moore, Whitner & Breazeale , for appellant.
Cothran, Solicitor , contra.
The indictment in this case contains four counts. In the first the appellant " and other evil-disposed persons, to the jurors unknown," are charged with burglary and larceny in breaking into and entering the dwelling house of one Elias D. Pruitt, with intent to steal the goods of said Pruitt, and stealing therefrom bacon of the value of forty-five dollars and lard of the value of twenty-five dollars. In the second count the same parties are charged with the simple larceny of the same goods. In the third count Benjamin Strickland and Abner Strickland are charged as accessories before the fact to the larceny charged in the second count. And in the fourth count Benjamin and Abner Strickland are charged with the offense of receiving stolen goods, by buying and receiving the goods so stolen as above charged, from the parties charged with the stealing. All of the counts in the indictment, except the second, conclude in the usual form, " contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State," but the second count contains no such conclusion either against the statute or against the peace and dignity of the State. The jury found a verdict of not guilty upon all the counts of the indictment except the second, and upon that their verdict is, " we find Wm. B. Strickland guilty under the second count of this indictment."
A motion in arrest of judgment was made in the Circuit Court on two grounds: 1st. Because the second count of the indictment, under which defendant was convicted, is fatally defective in not containing the necessary conclusion. 2d. Because the indictment is fatally defective in that it contains a count for burglary, a felony, and a count for receiving stolen goods, which is a mere misdemeanor, as two such counts cannot be joined in the same indictment. The motion was refused by the Circuit Judge, and an appeal was taken upon the same grounds as were relied upon in support of the motion below.
We will consider the second ground first. Since the case of the State vs. Boise and Strike , (1 McM. 189,) followed by the cases of the State vs. Posey , (7 Rich. 490,) and State vs. Nelson , (14 Rich. 169,) there can be no doubt of the correctness of the decision below, so far as this ground for the motion is concerned.
The first ground, however, presents a more serious question. The well-established rule of criminal pleading is, that all indictments, whether for offenses at common law or by statute, must conclude against the peace and dignity of the sovereign within whose territory the acts charged were committed, and this rule has been incorporated into the Constitution of this, as well as many if not all of the other States of the Union. Our Constitution of 1868, in Article IV, Section 31, declares that " all indictments shall conclude against the peace and dignity of the State," which is very much the same as the provision found in Section 2, Article III, of the Constitution of 1790. It is likewise the rule that where an offense is created by statute, or where its nature and degree is changed or the punishment altered by statute, the indictment should, in addition to the conclusion, " contra pacem, & c. ," also contain the conclusion contrary to the form of the Act ).-1 Ch. Cr. Law, 290; Arch. Cr. Pl., 290; State vs. Riply , 2 Brev. 300; State vs. Gray , 14 Rich. 174.
Now, as the count in this indictment, under which the appellant has been convicted, contains neither of these required conclusions, it is very clear that the judgment must be arrested, unless this defective count can be aided by incorporating into it the necessary conclusions from some of the other counts containing such conclusion. It is doubtless true that where an indictment containing several counts, all of which are ignored except the last, in which the party charged is designated as " the said A B," without further description, reference may be had to the first count in which the party charged is designated by his proper name and " additions," as required by the Statute of Additions, (1 H. 5 Ch., 5,) or, to use the language of Chitty in his work on Criminal Law, p. 250, " though every count should appear upon the face of it to charge the defendant with a distinct offense, yet one count may refer to the matter in any other count so as to avoid unnecessary repetition, as for instance to describe the defendant as ‘ the said, & c.’ ; and though the first count should be defective or be rejected by the grand jury, this circumstance will not vitiate the residue." An instance of the application of this principle will be found in the case mentioned by Gould, J., in Phillips vs. Trelding , (2 H. Bl., 131,) where the indictment was for forgery, in which there were three counts charging the forgery and three charging the uttering of the forged paper.
In the first count the prisoner was particularly described, and, the grand jury having ignored the first three counts, an objection was raised that the remaining counts merely described him as " the said A B," without the addition of his degree, estate, mystery or place of residence; but the Judges held that the description was sufficient, as the latter counts might refer to the former. So also in the case of Commonwealth vs Clapp , (16 Gray 237). The complaint was by Henry H. Dean, of Easton, in the County of Bristol, charging " Eustis K. Clapp, of Easton, in the County of Bristol," as a common seller of liquors, with a second count for a single sale, in which the defendant was described simply as " the said Eustis K. Clapp." The defendant...
To continue reading
Request your trial