5 S.C. 65 | S.C. | 1874
The opinion of the Court was delivered by
It is not necessary to review all the grounds submitted, both in arrest of judgment and for a new trial, for among the many presented there are at least two in regard to which no difference of opinion can exist. Nor is it necessary, therefore, to en-quire whether the form of the indictment is sufficient, as averring all the circumstances which are essential to constitute and express the offense designed by the Act.
A recognized principle pervades the whole system of pleading,
A more glaring difference between the allegation in the indictment and the proof, in this particular, could not well be conceived. It can in no way be regarded as an immaterial averment, for to establish the breach of trust contemplated by the Act, the circumstances constituting it must be correctly set forth, and if sufficient to establish the charge, must be proved as laid. The trust averred was safely to keep the lumber; the trust proved was to saw and ship to market for sale. The allegation in the indictment was not sustained by any evidence, and until the trust charged in it was established by testimony, there could be no breach of it.
The exception to the instruction of the Judge, as violative of the 26th Section of the IVth Article of the Constitution, is also well taken. Its language is as .follows: “ Judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law.”
We are not to be understood as holding that a Judge, in his charge to the jury, is to be confined to a mere narration of the evidence. While he is not at liberty to give his conclusion on any particular portion of the testimony, nor the result of his judgment as to the whole, he is not restrained from comparing the various parts of it, that the jury may have before them, in as concise a form as possible, the issues upon which they are to pass, so that they may
In the case before us the Judge, so far from refraining to give his own opinion on the very issue with which the jury was charged, said to them : “ Witnesses on the part of the State agree as to the trust being created and betrayed, and the defense, even with the latitude allowed it, has failed to create a doubt in that particular, to wit: that the said Tappin G. Green did have in trust this lumber, and did misappropriate the proceeds.” He thus submitted, not only his conclusion of law to be applied to the facts, but so expressed his opinion in regard to them that not even a doubt was left for the solution of the jury.
The motion in arrest of judgment is granted.