State v. Tabory, No. 19768
| Court | United States State Supreme Court of South Carolina |
| Writing for the Court | LITTLEJOHN; MOSS |
| Citation | 262 S.C. 136,202 S.E.2d 852 |
| Parties | The STATE, Respondent, v. Leon TABORY, Appellant. |
| Docket Number | No. 19768 |
| Decision Date | 11 February 1974 |
Page 852
v.
Leon TABORY, Appellant.
[262 S.C. 137] J. Lewis Cromer and John L. Sweeny, Columbia, for appellant.
[262 S.C. 138] Asst. Sol. George C. Kosko, Columbia, for respondent.
LITTLEJOHN, Justice:
The grand jury of Richland County indicted the defendant-appellant, Leon Tabory,
Page 853
charging in the first count that on October 12, 1972, he 'did knowingly and intentionally possess a quantity (1 tablet) of Amphaplex 20, a controlled substance, such substance not having been obtained as authorized by Act No. 445, Acts of 1971, General Assembly of South Carolina, while being an inmate in the South Carolina Department of Corrections.'In the second and third counts of the indictment, in language identical to that of the first count, Tabory was charged with possessing a quantity (39.2 micrograms) of LSD and a quantity (0.4151 grams) of hashish, respectively.
Upon the trial of the case, the trial judge instructed the jury that 'this case was brought under two Code Sections of our Code of Laws.' He proceeded to charge, first, § 32--[262 S.C. 139] 1510.49(b) (Cum.Supp.1971) of the laws regulating controlled substances and dangerous drugs and, secondly, (over objection of counsel) § 55--383 (Supp.1972), which is entitled 'Contraband.'
Tabory was found guilty and sentenced to serve eight years consecutive to the term of imprisonment he was then serving.
Tabory contends that the trial judge erred in instructing the jury relative to § 55--383 because the indictment did not charge a violation of that section. We agree.
In 23A C.J.S. Criminal Law § 1311 (1961), the applicable general rule is stated to be as follows:
'As a general rule the instructions should be confined to the issues made by the pleadings, and should not be broader or narrower than the indictment or information, and an instruction which is not based on, and in conformity with, the issue properly raised by the pleadings is generally erroneous, . . . It has been held that the instructions should not . . . submit to the jury an offense not included in the indictment or information.'
The logical reason for this rule is that a defendant in a criminal case is entitled to be tried only upon the charges in the indictment against him. See Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).
Section 17--402 of the Code (1962) sets forth the...
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State v. Hamilton, No. 3317.
...be alleged to be contrary to the statute in such case made and provided." S.C.Code Ann. § 17-19-20 (1985). See also State v. Tabory, 262 S.C. 136, 202 S.E.2d 852 (1974) (indictment phrased substantially in language of statute which creates and defines offense charged is ordinarily suff......
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McGee v. Warden of Lieber Corr. Inst., C. A. 5:21-2777-RMG-KDW
...780 (1991); State v. Munn, 292 S.C. 497, 351 S.E.2d 461 (1987); State v. Hardee, 279 S.C. 409, 308 S.E.2d 21 (1983); State v. Tabory, 262 S.C. 136, 202 S.E.2d 852 (1974); State v. McIntire, 221 S.C. 504 71 S.E.2d 410 (1952); State v. Perry, 87 S.C. 535, 70 S.E. 304 (1911). Therefore, even i......
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State v. Tumbleston, No. 4312.
...288 S.C. 325, 326, 342 S.E.2d 597, 598 (1986); Summerall v. State, 278 S.C. 255, 256, 294 S.E.2d 344, 344 (1982); State v. Tabory, 262 S.C. 136, 139-40, 202 S.E.2d 852, 853 (1974). Consequently, a defective or insufficient indictment often resulted in the lack of subject matter jurisdiction......
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State v. Means, No. 26105.
...from usurping the power of the grand jury by ensuring a defendant is tried for the crime for which he was indicted. State v. Tabory, 262 S.C. 136, 139, 202 S.E.2d 852, 853 (1974); State v. Guthrie, 352 S.C. 103, 108, 572 S.E.2d 309, 312 (Ct.App.2002), overruled on other grounds, Gentry, 363......
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State v. Hamilton, No. 3317.
...be alleged to be contrary to the statute in such case made and provided." S.C.Code Ann. § 17-19-20 (1985). See also State v. Tabory, 262 S.C. 136, 202 S.E.2d 852 (1974) (indictment phrased substantially in language of statute which creates and defines offense charged is ordinarily sufficien......
-
McGee v. Warden of Lieber Corr. Inst., C. A. 5:21-2777-RMG-KDW
...780 (1991); State v. Munn, 292 S.C. 497, 351 S.E.2d 461 (1987); State v. Hardee, 279 S.C. 409, 308 S.E.2d 21 (1983); State v. Tabory, 262 S.C. 136, 202 S.E.2d 852 (1974); State v. McIntire, 221 S.C. 504 71 S.E.2d 410 (1952); State v. Perry, 87 S.C. 535, 70 S.E. 304 (1911). Therefore, even i......
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State v. Tumbleston, No. 4312.
...288 S.C. 325, 326, 342 S.E.2d 597, 598 (1986); Summerall v. State, 278 S.C. 255, 256, 294 S.E.2d 344, 344 (1982); State v. Tabory, 262 S.C. 136, 139-40, 202 S.E.2d 852, 853 (1974). Consequently, a defective or insufficient indictment often resulted in the lack of subject matter jurisdiction......
-
State v. Means, No. 26105.
...from usurping the power of the grand jury by ensuring a defendant is tried for the crime for which he was indicted. State v. Tabory, 262 S.C. 136, 139, 202 S.E.2d 852, 853 (1974); State v. Guthrie, 352 S.C. 103, 108, 572 S.E.2d 309, 312 (Ct.App.2002), overruled on other grounds, Gentry, 363......