13 S.C. 389 | S.C. | 1880
The opinion of the court was delivered by
The defendants were convicted upon an indictment for bui’glary and larceny, at July Term of. the court for Richland county, 1879, and sentenced to confinement in the penitentiary at hard labor for the term of six years. The indictment charged that the offence was committed by taking seventeen pieces of bacon from the smoke-house of Nick C. Joiner, February 9th, 1879. The proof was, that the taking was a year before, February, 1878, and the owner of the property was N. G. Joiner. The defendants were arrested April, 1879, and carried before a trial justice, and a preliminary examination was held at Eastover. One of the witnesses for the state was caught by the trial justice in a “crooked tale,” and the trial justice spoke angrily to him and threatened “ if he did not stop shenanegan and tell the truth, he would send him right up to jail.” Defendants were asked what they had to say for themselves, and were told that “ if they desired to make a statement it was their privilege to do so, and they were warned that whatever they said would be taken for them or against them, as it might be.” Defendants then made confession, each charging- the other and one Tempe Brown, with the crime. Harris said he stopped in a low, wet place and Branham and Tempe Brown went to the smokehouse and brought the meat down to him and he helped to carry it off. [A low, wet place is about three hundred and seventy-five yards from the smoke-house. The track of three persons led from the smoke-house to the low, wet place.] Branham said he went with them and stopped under a wagon shed; that Harris and Brown came to him and told him “ the house had been dug under,” and to come and get the meat. He said he refused lo go and they went and got the meat, and that he helped them to carry it off. These statements were reduced to writing by the trial justice, read over to and signed by the respective defendants and the trial justice, which paper was in court. Parol testimony was received to prove the confessions. [Defendants excepted.] Defendants then moved to strike out the confessions, on the ground that they were improperly obtained, which motion was
, Defendants made motions for a new trial and in arrest of judgment, and failing therein.appealed to this court on the following grounds:
1. “ That the presiding judge erred in receiving parol testimony of the alleged confession of defendants, the rule being when prisoners conféss before examining magistrates it is the duty of the latter to take the confessions in writing, and the writing alone is evidence of the confessions, unless it appears that the writing is lost or destroyed.
2. “That his Honor erred in allowing the confessions, the circumstances surrounding the confessions being such as to make them inadmissible.
3. “ That there is fatal variance between the allegations of the indictment and the proof, in this: the indictment alleges the offence on February 9th, 1879, and the proof is that the offence was committed February 9th, 1878, and the indictment should have so charged.
4. “ That the verdict is contrary to the law and the evidence.”
The last exception, that the verdict is “ contrary to the law and the evidence,” does not charge any specific error, and, therefore,' .cannot be considered. The sufficiency of the proof to charge the prisoners as principals was properly addressed to the Circuit iudge upon a motion for a new trial. The alleged misnomer as to the owner of the property, Nick C. Joiner for N. Gr. Joiner, does not appear to have been objected to in the court below, or brought to the attention of the judge, either in the pleadings or orally. No reference is made to it in the grounds of appeal, and the matter is not before this court in such form that we can consider it. The other grounds of appeal will be considered in the inverse order in which they are stated.
As to the variance between the indictment and the proof as to the time the offence was committed. No statute of limitations is in the case, but simply a question of pleading. It is not necessary to prove the precise day or even year laid in the indictment, except where time enters into the nature of the offence, or is made part of the description of it. State v. Anderson, 3 Rich. 176; State v. Porter, 10 Rich. 148.
Accepting this view, it is then argued that the defendants could not be indicted and punished under the aforesaid section of the general statutes, for the reason that the act of 1878, being on the same subject, was a substitute for and a repeal of that law. That the defendants could not be tried and punished under the act of 1878, because it was passed after the offence, nor under the aforesaid section of the general statute, because that was repealed by the act of 1878, and there being no law under which they could be punished, consequently they must go free — as did the defendant convicted for cow-stealing, in the case of State v. Thomas, 14 Rich. 164. We do not think the cases are analogous. In the case of Thomas, as here, the offence was committed before and tried after the change of the law, and there was no authority under which he could be punished, for the reason that it was held that the act of 1866, upon the subject of cow-stealing, operated as a repeal of the act of 1789, upon the same subject. But no such result can happen in this case. The act of 1878
The act of 1866, re-enacted in the general statutes, shows, by its terms, that it is not inconsistent with burglary at common law, but, on the contrary, assuming its existence, is based upon it and only supplements it by enlarging the field within which an analogbus statutory offence could be committed. The terms are: “ With respect to the crimes of burglary and arson, and to all criminal offences, which are constituted or aggravated by being committed in a dwelling-house, any house, &c., * * * in which there sleeps a proprietor, &c., * * * with a view to the protection of the property, shall be deemed a dwelling-house,” &c. 13 Stat. 405. No repeal of burglary at common law was intended by this act — none is necessarily involved in its terms and none can be implied. Nor does the act of 1878 operate as a repeal, either of burglary at common law or of the additional statutory offence provided for in the section aforesaid. The latter it does not touch at all, and only increases the punishment of the former, in the view, doubtless, that burglary at common law is more heinous than the statutory offence created by the section aforesaid. We can discover no error in the judge’s charge on the subject of the third exception.
It is especially necessary to guard with jealousy all confessions made by prisoners in arrest in the presence of the officers of the law; but it is impossible to lay down any rule that will determine every case. As is said in some of oúr cases, there is no difficulty about the principle itself, but its application is beset with difficulties. In practice, what is and what is not a violation of the principle, must of necessity be left, in the first instance, to be determined by the Circuit judge, whose situation best enables him to decide in each case whether the confessions are voluntary. The judge below, familiar with all the facts, ruled that the confessions were voluntary in this case, and, upon review, refused a motion for a new trial, and it is difficult to say, as matter of law, that he was in error. The manner of the officer was peremptory, but no inducements were held out and there was some corroborating testimony. Some of the earliest cases held that all confessions of one in arrest, made to an officer in authority, were
Upon a preliminary examination the accused parties have the right to be, present and cross-examine witnesses, but they are not required to make any statement themselves. Gen. Stat. 197. It is not the duty of a trial justice to examine accused parties or to take their statements in writing, unless they are sworn as witnesses on behalf of the state by their own consent, and if he does so it is not an official act; but he is not prohibited from doing so, and a respectable authority recommends that the ancient
The judgment is set aside and a new trial ordered.