State v. Sweat, 16616

• Decision Date: 08 April 1952
• Docket Number: No. 16616,16616
• Citation: 70 S.E.2d 234,221 S.C. 270
• Court: South Carolina Supreme Court
• Parties: STATE v. SWEAT et al.

Page 234

70 S.E.2d 234

221 S.C. 270

STATE v. SWEAT et al.

No. 16616.

Supreme Court of South Carolina.

April 8, 1952.

Joel I. Allen, Mullins, for appellants.

J. Reuben Long, Solictor, Conway, for respondent.

FISHBURNE, Justice.

The defendants, Frank Sweat, Munroe Sweat, Clifford Sweat, Eugene Tindall, and Willie Yarboro were tried under an indictment containing three counts, to wit: (1) Housebreaking, (2) Larceny, and (3) Receiving stolen goods. All of the defendants were convicted of housebreaking and larceny except the defendant, Clifford Sweat, and he was convicted of receiving stolen goods.

The first count charged all of the defendants with feloniously breaking and entering on September 6, 1950, the Independent Tobacco Warehouse of J. H. Dixon, Sr., J. H. Dixon, Jr., L. H. Bane, Sr., and L. H. Bane, Jr., in the daytime, with the intent to steal the goods and chattels of the owners of the warehouse. The second count charged the defendants with the larceny of 120 pounds of tobacco of the value of more than $20, from the possession of the owners of the warehouse, the Dixons and Banes. And they were all charged in the third count with feloniously receiving the tobacco in question, knowing that the same had been stolen.

Upon the call of the case, counsel for the defendants demurred to the indictment and moved to quash it upon the ground that tobacco placed on the warehouse floor belongs to someone, but not to the warehousemen. In other words, the name of the true owner had not been alleged. And immediately after the first witness for the state had testified that C. W. Walters Tobacco Company had bought the tobacco in question and was the owner thereof, defendants again moved to quash the indictment on the ground that the indictment must state the name of the true owner of the property alleged to have been stolen.

The trial court correctly overruled both motions: the first because it did not appear on the face of the indictment that the Dixons and Banes were not the owners of the tobacco. The second motion to quash was not only out of order at that stage of the case, but if treated as a motion for a directed verdict it was prematurely made because the State had just commenced the introduction of its evidence.

When the State had rested its case, defendants moved for a directed verdict on the ground that the persons named in the indictment were not the true owners of the tobacco, and that there was a variance, in that the proof did not conform to the allegations of the indictment. The Court ruled that the indictment alleged that the tobacco was stolen from the possession of the warehousemen, and since it appeared that they were bailees, the indictment was without fault. As to this ruling, the appellants assign error.

After denying the motion for a directed verdict, the court permitted the State to amend the second count of the indictment charging larceny by adding, following the allegation that the tobacco had been stolen from the possession of the warehousemen, the words, 'the true owner being C. W. Walters Tobacco Co., a Corp.' This amendment was allowed by the Court under Section 1005 of the Code, which provides that if on the trial of any case there shall appear to be any variance between the allegations of the indictment and the evidence offered in proof thereof, it shall be competent for the Court before which the trial shall be had, to amend the indictment according to the proof, provided, such amendment does not change the nature of the offense charged.

In our opinion, the Court committed no error in refusing to direct the verdict, and in allowing the amendment. The nature of the offense was not changed.

Larceny involves the felonious taking and carrying away of the goods 'of another.' It is essential that the stolen goods be owned by someone other than the thief, but it is not ordinarily essential that the thief should know who the owner is. As stated in 32 Am.Jur., § 22, Pages 907, 908:

'It is sufficient if he knows that the property is not his own and takes it to deprive the true owner of it. Nor is it necessary, in order to make the taking larceny, that the person from whom the property is stolen should have the general ownership. It is sufficient that he has possession as bailee * * *.'

In 52 C.J.S., Larceny, § 81, page 88, the same principle is announced, that the ownership of property stolen from the possession of a bailee may be laid either in the bailor or the bailee, or it may be laid in both bailor and bailee, in separate counts.

Error is assigned by the defendants other than Clifford Sweat, upon the ground that they were convicted of an entirely different offense from that charged within the terms of the indictment. Reference is had to the first count, which charges housebreaking in the daytime.

The indictment in this case was laid under Sec. 1139 of the Code, which reads as follows:

'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 shall break with intent to enter, in the night time, any house, the breaking and entering of which would not constitute burglary, with intent to commit a felony or other crime of a lesser grade, shall be held guilty of a felony, and punishable at the discretion of the court by imprisonment in the county jail or penitentiary for a term not exceeding one year.'

Upon the close of all the testimony, the solicitor elected to go to trial charging the defendant, Clifford Sweat, under the third count,--that is, receiving stolen property knowing the same to have been stolen; and the other four defendants under the first and second counts, charging, respectively, housebreaking and grand larceny.

The first count specifically charged that the offense of housebreaking had been committed in the daytime. The proof showed without contradiction that the Independent Tobacco Warehouse had been broken into and entered in the nighttime.

Under our cases, we think that a verdict of not guilty should have been directed under Count One of the indictment. The identical question was presented in State v. Sowell, 85 S.C. 278, 67 S.E. 316, 318, where the Court stated:

'In State v. Bouknight, 55 S.C. 353, 33 S.E. 451, it was held that section 145, supra (now Sec. 1139), 'creates two distinct and different offenses, though both belong to the same class of felonies, and are punishable in the same way,' and that,...