State v. Wells

• Decision Date: 16 October 1931
• Docket Number: 13258.
• Citation: 161 S.E. 177,162 S.C. 509
• Parties: STATE v. WELLS.
• Court: South Carolina Supreme Court

161 S.E. 177

162 S.C. 509

STATE v. WELLS.

No. 13258.

Supreme Court of South Carolina

October 16, 1931

Appeal from General Sessions Circuit Court of Greenville County; E C. Dennis, Judge.

George G. Wells was convicted of breach of trust with a fraudulent intention, and he appeals.

Affirmed.

Price & Poag, of Greenville, for appellant.

J. G Leatherwood, Sol., B. A. Morgan, and C. G. Wyche, all of Greenville, for the State.

BLEASE C.J.

George G. Wells, convicted and sentenced in the court of general sessions for Greenville county of breach of trust with a fraudulent intention, has appealed to this court.

There are twenty-three exceptions, but counsel concede that these raise only twelve questions. We shall endeavor to dispose of the questions made without reciting the exceptions in detail.

The first indictment returned by the grand jury against the appellant contained seven counts. The substance of each count was that the appellant, while acting as clerk and treasurer of the city of Greenville, at different times, specified in the indictment, between February 2, 1927, and December 31 1929, had feloniously taken and appropriated to his own use certain sums of money belonging to the city of Greenville. Upon call of the case for trial, after having announced that he was ready, appellant moved that the state be required to elect upon which count it would go to trial. The presiding judge expressed the opinion that the seven counts set forth in the indictment charged separate and distinct offenses, and granted the motion made. Upon the announcement of the ruling, the solicitor, with the consent of the court, entered a nolle prosequi on the indictment. A little later in the day another indictment, the one on which the appellant was convicted and sentenced, was prepared and presented to the grand jury, who returned a true bill thereon. This indictment charged the appellant with breach of trust with a fraudulent intention as to the sum of $20,198.28, which amount it appears was made up of the various items specified in the seven counts of the first indictment. The appellant sought a postponement of the trial until the following day to give him and his counsel opportunity to examine more carefully the new indictment, for the purpose of making any motion as to the same which it might be desired to submit.

The first question raised by the appellant suggests two errors on the part of the court. One is that it was improper to allow the solicitor to nol pros the first indictment. This court has held that, subject to the approval of the trial judge, the solicitor has broad power as to entering a nolle prosequi on an indictment at any time before the jury has been charged with the trial of the case. In State v. Thomas, 75 S.C. 477, 55 S.E. 893, 894, this was said: "It has been a long established practice in this state for the solicitor to nol. pros. indictments until a proper one can be submitted. As was said by Judge Whitner, as the organ of the court in the case of State v. McKee, 1 Bailey, 651, 654, 21 Am. Dec. 499: 'The solicitor has the right to enter a nolle prosequi at any time before the jury is charged but not after.' Chitty, in his Common Law, 478, says: 'A nolle prosequi may be entered during all the stages of pleading to the indictment."

To sustain the position taken, appellant's counsel cites the case of State v. Milano, 138 La. 989, 71 So. 131. The decision in that case, however, in our opinion, does not support the appellant's contention. There, the prosecuting attorney used his power to enter a nolle prosequi clearly for the purpose of evading the jurisdiction of the court, in which the defendant had been indicted, and to have him indicted and tried in a court which the prosecuting attorney regarded as more favorable for the purpose of securing a conviction. There was no attempt here on the part of the solicitor to remove the case from the court which properly had jurisdiction of the cause.

Even, however, if it should be conceded that the decision of the Louisiana court supports the position of the appellant, it must be apparent that, in matters of practice, we should follow the decisions of our own court rather than those of other jurisdictions, however highly those courts may be respected. We may observe in this connection our understanding is that the laws of Louisiana, and the practice of the courts of that state, have come from the civil law and not from the common law, which has been so long recognized and followed in South Carolina. The decisions of our own court, as shown by the quotation from the Thomas Case, compel us to hold that the solicitor, with the consent of the trial judge, had the right to enter a nolle prosequi on the indictment.

The second objection, that the court should have granted the desired continuance, cannot be upheld, since there is no showing to convince us that there was an abuse of discretion on the part of the trial judge in refusing the appellant's request. It is well settled that continuances and postponements of trials rest largely within the discretion of the trial judge. The appellant had announced his readiness for trial on the first indictment. His contention is that the second indictment lumped together all the charges contained in the first. If he was prepared to go to trial on the first indictment, then he must have been prepared to go to trial on the second.

In the second issue presented, the appellant urges that, since the original indictment contained seven counts for breach of trust with fraudulent intention, his motion to elect having been sustained, and the solicitor having caused a new indictment to be returned, in which all the counts in the first indictment had been joined as one count, all of which it is contended was for the purpose of evading the court's ruling that the state should elect, it was error in the court not to quash the second indictment, on the grounds that it was duplicitous and included several separate and distinct offenses not growing out of the same transactions.

In our opinion, the indictment was entirely sufficient and complied with the requirements of the statute in charging the crime alleged to have been committed by the appellant. The instrument on which the appellant was put to trial plainly and substantially charged that the appellant was intrusted by the city of Greenville with the sum of $20,198.28, property of the said city, and that he did "willfully, unlawfully and feloniously take and appropriate" the said sum of money "to his own use and purposes, with intention of cheating and defrauding that said City of Greenville. ***"

The second indictment had to stand by itself. The first indictment having been nol prossed, it was not proper for it to be considered in connection with the second, when the judge passed upon the appellant's motion to quash because of duplicity. Time is not an element in the crime of breach of trust with fraudulent intention; and it is not necessary to prove either the precise time or the precise amount laid in the indictment. State v. Dewees, 76 S.C. 72, 56 S.E. 674, 11 Ann. Cas. 991. The crime is practically the same as that of larceny, and is especially prohibited by section 43 of the Criminal Code 1922. An indictment in a case of breach of trust with fraudulent intention is sufficient if the offense be so described that the defendant may know how to answer it, the Court what judgment to pronounce, and that a conviction or acquittal on it may be pleaded in bar of another indictment for the same offense. State v. Shirer, 20 S.C. 392.

The third contention of the appellant is that, on the second indictment, the court should have granted his motion requiring the state to furnish a bill of particulars. We know of no provision in our law requiring the presentation or delivery of a bill of particulars. It seems to be the practice in some jurisdictions, but it is not known in ours. Generally, the same result may be accomplished, however, by a motion to quash the indictment because it does not furnish a defendant with the necessary and proper information for him to meet the charges preferred against him. Even if a motion of that kind had been made in the case at bar and overruled, we could not hold that such ruling would have been erroneous, for, as already indicated, we think the indictment here was entirely sufficient.

The fourth question presented by the appellant relates to the grand jury, which returned the bill of indictment against him, and the venire of thirty-six jurors, from which were obtained the twelve jurors, who tried and convicted him. A statement of the facts, out of which the legal issues are made, is necessary.

On October 8, 1930, within less than three weeks before the opening of the court, at which the appellant was tried, his honor, T. J. Mauldin, resident circuit judge of the Thirteenth judicial circuit, at chambers, upon the ex parte petition of the solicitor of the circuit, passed an order discharging the grand jury of Greenville county, which had been serving for the year 1930, and he also declared the entire jury list of the county illegal. The jury commissioners were ordered to empty the jury box and the tales box and to prepare a new list of qualified jurors according to law, and place their names in the jury boxes. The jury commissioners were further directed to draw eighteen men to serve as grand jurors for Greenville county for the balance of the year, 1930, and thereafter, during the year 1930, to draw all petit juries for the Courts of that county from the newly filled jury boxes. The jury commissioners complied with the order of Judge Mauldin, and, as directed by him, drew the grand jury, which acted upon the bill of indictment against the appellant, and the...