State v. Dawkins

32 S.C. 17 | S.C. | 1890

The opinion of the court was delivered by

Mr. Justice McIver.

This case w'as submitted without argument on either side, and the record consists only of the testimony, the charge of the Circuit Judge, and the grounds of appeal, together with a brief statement of what occurred in the court below after the verdict was first rendered; but what sentence was passed upon the defendants nowhere appears. We are, therefore, left to conjecture whether the accused were sentenced to imprisonment in the penitentiary, with hard labor, during their whole lives, as originally provided by the act of 1878, now incorporated in the General Statutes as section 2481, or whether their punishment was reduced, as provided for by the amendment to that section by the act of 1883, 18 Stat., 290. Under these circumstances, we might well decline to hear this appeal, and, but for the gravity of the case, would probably do so. We will, however, proceed to consider the case as well as we can upon such materials as have been furnished to us.

It may be gathered from the testimony set out in the record, that these defendants were charged with burglariously entering a house used as a hotel, in which the prosecutors resided, and stealing therefrom a considerable sum of money; and we infer from some remarks made by the judge, in his charge to the jury, that the indictment contained two counts — the first for burglary and the second for grand larceny simply. We may also infer that the time laid in the indictment was the 19th of June, 1889, while the testimony pointed to the 21st of June of the same year as the date on which the offence was committed. The jury rendered a general verdict in these words: “We find both the defendants guilty,” and the jury were thereupon discharged for that day, and the court adjourned until the next morning. On the next morning, when the court reconvened, the judge directed the same jury which had rendered the verdict to be re-empanelled, and had the defendants brought before them, and their attention was called to the size and age of the defendants. The judge then stated to the jury that he had omitted, in charging them in this case, to call their attention to the amendment of the previous statute on the subject, whereby they might, by a recommendation to mercy, cause the punishment of the offence of burglary to be reduced from imprisonment for life to a less term, and the jury were directed to retire and say whether they would recommend the defendants to the mercy of the court or not. The jury then retired, and returned with a verdict in these words: “We find both defendants guilty, and recommend to mercy.”

T.he defendant, Wm. Dawkins, alone appeals upon the grounds set out in the record.

The first ground imputes error in admitting testimony tending to show that a burglary was committed on the 21st day of June, the indictment charging that the offence was committed on the 19th of June. The rule is well settled, that it is in no case necessary to prove the precise day or even year laid in the indictment, except where time enters into the nature of the offence, but, on the contrary, any day previous to the finding of the bill may be proved instead of the day alleged in the indictment. 1 Chit. Cr. Law, 224; State v. Anderson, 3 Rich., 176; State v. Porter, 10 Id., 148. Now, while it is -necessary, in an indictment for burglary, both to allege and prove that the offence was committed in the night time of some day, yet the precise day is wholly immaterial, provided it is anterior to the finding of the bill of indictment.

The second and sixth grounds of appeal impute error to the Circuit Judge in failing to define the crime of burglary, and in instructing the jury, that “if the house was entered in the night time, on Friday night, at the time Mr. Jones heard some one walking there, then if you believe he shut it up as he said he did, if it was entered after that, and the money taken that night, then it was-burglary.” It is true that the Circuit Judge, when counsel called his attention to the fact that he had given the jury no definition of burglary, did say, “I don’t intend to define burglary,” but he immediately proceeded to explain to the jury that if they believed certain facts which had been testified to in this case, such facts would constitute burglary, at the same time informing them that even if the house was entered in the night time, when any portion of it was open, it was not burglary. While, therefore, he did decline to define, in general terms, the offence of burglary, he did lay down correct, principles of law applicable to the particular facts testified to in the case, which was doubtless much better calculated to enable the jury to reach an intelligent conclusion, than if he had laid down a general definition of the offence charged, without reference to the particular facts and circumstances testified to in the case. We do not understand that (in the language of the Chief Justice in State v. Dodson, 16 S. C., 463) “a judge is bound to lay before the jury all the law which might, under any circumstances, apply to the offence charged, but only such principles as are applicable to the case as made by the evidence.” When this is done, the jury are in much better condition to apply such principles to the facts found by them than if they were merely furnished with general definitions.

The fifth ground charges error on the part of the Circuit Judge in overruling the motion in arrest of judgment, “when there was an entire failure of proof that there was a breaking.” Even if we are at liberty to assume that any such motion was made or refused, in the absence of any intimation to that effect in the “Case,” yet, as it seems to us, the remedy would have been by a motion for a new trial, and not by motion in arfest of judgment. But waiving this, there was testimony tending to show that there was such a breaking as would be sufficient to constitute that element in burglary, and we cannot, therefore, say that there was a “failure of proof” as to this point.

The third and fourth grounds allege error on the part of the Circuit Judge in commenting on the facts, the only specification being that he stated to the jury that “the next day is the day these persons were found spending the money.” It seems from the testimony, that the first circumstance which caused these defendants to be suspected was the fact that they were seen together in some of the stores in the town of Edgefield spending money in such amounts as attracted attention, the day after the house was supposed to have been entered. The Circuit Judge, in stating this testimony to the jury, used the language quoted above, and in the connection in which it was used we can hardly suppose that it would have the effect of conveying any intimation of the judge’s opinion or even impression as to the guilt of these parties, but was a'mere narrative of what the witnesses had stated. We are unable to find anything in the charge which is in violation of the constitutional provision in respect to the power of the judge to charge juries with respect to matters of fact.

The seventh and eighth grounds, relating exclusively to alleged errors in charging the jury in respect to the offence of larceny, even if well founded as abstract propositions, can have no application to the present case in which the defendants have been convicted of burglary and not of larceny simply. If, as we have seen, no error has been committed in laying down the law as to the offence of which the defendants have been convicted, it matters not what errors may have been committed in laying down the law applicable to an offence of which they have not been convicted. We are confined to a consideration of the question, whether there are any errors of law in the judgment appealed from, and as, under the general verdict found by the jury, that judgment must be regarded simply as á judgment pronounced for the offence of burglary, our investigation must be confined to the inquiry, whether there was any error in laying down the law applicable to that offence.

The ninth and tenth grounds of appeal question the legality of the course pursued in the court below after the verdict had been rendered and the jury discharged from the case, by re-empanelling them the next day for the purpose of giving them instructions, inadvertently omitted before, as to their power to recommend to mercy, and the effect of such recommendation. We do not know of any authority for such a proceeding, and none has been cited. While we have no doubt whatever that the course pursued in this instance was prompted by the best motives, and was really designed to give the defendants the benefit of a merciful provision of the law, yet we feel bound to regard it as a dangerous innovation upon well settled legal principles, and one which is not sanctioned by any law. After a jury have rendered their verdict and have been discharged, we know of no authority by which they can be re-empanelled, and, under further instructions, be called upon to render a new and different verdict. Such a power once recognized, even in a case like this, where its exercise was doubtless intended in favor of liberty, would afford a precedent which might lead to the most dangerous consequences. But without pursuing this line of remark, it is quite sufficient for us to say that it is without authority of law. We must, therefore, regard the second so-called verdict as an absolute nullity, and the judgment, which we must assume was rendered upon it, as without legal foundation, and should for that reason be set ¿side.

It may be said, however, that the first and only real verdict in the case would be sufficient to support the judgment. But it must be remembered, that by the express terms of the statute (Gen. Stat., § 2481), the only judgment which would be legally rendered on that verdict would be imprisonment in the penitentiary with hard labor for life, and any other judgment would be erroneous and illegal; and if so, then our plain duty is to reverse it. Now. while the nature of the judgment rendered-in this case does’ not distinctly appear in the record, yet we are bound to infer from ■what does there appear, that the judgment actually rendered was erroneous and illegal, for the act- of 1883, amending the section of the General Statutes above referred to, expressly declares, that where a person is convicted of burglary at common law, and is recommended to the mercy of the court by the jury, the punishment shall be reduced from that prescribed by that section 'of the General Statutes prior to the amendment. And as the manifest object of the Circuit Judge in re-empanelling the jury was to give these defendants the benefit of the reduction provided for, we are forced to the conclusion that the judgment rendered was based upon the second so-called verdict.

The judgment of this court is, that the judgment of the Circuit Court, so far as it concerns the appellant, William Dawkins, be reversed, and that the case be remanded to that court for a new trial as to said William Dawkins.