State v. Hasty

56 S.E. 669 | S.C. | 1907

February 13, 1907. The opinion of the Court was delivered by The following statement is set out in the record:

"This was an indictment against George Hasty, defendant, appellant herein, under the charge of murder for the killing of Milan Bennett, at Gaffney, said county and State, on December 15, 1905. On the fourth Monday in February, being February 26, 1906, the defendant was arraigned and pleaded `not guilty' to the indictment. On Thursday, March 1, 1906, the case being called for trial, and before the jury was impanelled or sworn, the defendant made a motion to quash the indictment, upon the grounds hereinafter contained, which motion his Honor overruled, having first allowed the defendant to withdraw his plea for the purpose of making said motion to quash.

"The cause then proceeded to trial on that day and continued from day to day thereafter, with the exception of Sunday, until Monday afternoon, March 5th, 1906, when the jury was charged by the Judge and sent to their room charged with the case. On Tuesday morning, March the 6th, 1906, the jury returned a verdict of `guilty, with recommendation to mercy of the Court.' Thereupon, defendant's attorneys made a motion for a new trial upon the minutes, which motion being overruled, said attorneys made a motion in arrest of judgment, upon the grounds that the verdict of the jury was null and void and the Court was without jurisdiction to pass final judgment and sentence upon the defendant, upon the grounds that the acts of 1905, prescribing the time for holding the Courts in the seventh circuit, limited the Court of General Sessions at Gaffney to one week, beginning on the fourth Monday in February, and ending the end of said week, and said week having expired and no verdict having been rendered during the time prescribed by said act, but being rendered after the expiration of said time, it was null and void, and the Court had no power to pass sentence and judgment based thereon. This motion was overruled by his Honer, who sentenced the defendant to the pententiary at hard labor for the term of his natural life.

"Col. Geo. Johnstone, of counsel for the defendant, was unwell during the whole trial of the case, on account of which his Honor, the presiding Judge, indulged counsel for the defendant in every reasonable way, which indulgences resulted in delaying the completion of the trial, which trial would have been completed sooner but for such delays."

The defendant appealed upon exceptions which will be reported.

The 1st, 2d and 3d exceptions will be considered together.

The vital question raised by these exceptions is, whether there was error on the part of his Honor, the presiding Judge, in refusing to quash the indictment, on the ground that it did not contain a special count, for carrying a pistol concealed about the person of the accused.

Section 130 of the Criminal Code provides that any person carrying a pistol concealed about his person shall be guilty of a misdemeanor, but that nothing therein contained shall be construed to apply to persons carrying concealed weapons upon their own premises.

Section 131 is as follows: "In every indictment for murder * * * there shall be a special count in said indictment for carrying concealed weapons, and the jury shall be required to find a verdict on such special count."

In the case of State v. Norton, 69 S.C. 454,48 S.E., 464, the indictment contained two counts, one for murder and another for carrying concealed weapons. The defendants entered a plea of not guilty to said indictment. At the close of the testimony the Solicitor entered a nol. pros. as to the count for carrying concealed weapons. The jury found two of the defendants guilty, with recommendation to mercy. They made a motion for a new trial and in arrest of judgment, on the ground "that the indictment did not contain a count for carrying concealed weapons, and the jury was not required to pass upon the issue, as provided in the Criminal Code." This Court said: "Each count in an indictment is considered, to all intents and purposes, a separate indictment. 10 Enc. Pl. Pr., 540. The indictment was drawn in compliance with the requirements of the statute. The counts in the indictment were in no wise dependent upon each other. They charged distinct offenses, and when the Solicitor was satisfied that one of the counts was not sustained by the testimony, he had the right to enter a nol. pros. as to that count. His action, instead of being prejudicial, was advantageous to the appellants, and we fail to see wherein they have any just ground of complaint."

If the solicitor had the right in that case, to enter a nolpros. as to the count for carrying concealed weapons, when he was satisfied that it was not sustained by the testimony, he had a right, in the case under consideration, to omit the count for carrying concealed weapons, upon being satisfied, in the first instance, that it would not be sustained by the testimony, especially when it might well have been contended that the accused was on his own premises, at the time of the homicide.

These views practically dispose of all the questions presented by said exceptions.

In the fourth exception the appellant contends that the Court of General Sessions expired at midnight, on Saturday of the week beginning on the fourth Monday of February; that the verdict of the jury, rendered on the following Tuesday, was a nullity, and his Honor was without jurisdiction to impose the sentence.

The time fixed in the act of 1905 for holding the Court of General Sessions is as follows: "The Court of General Sessions at Gaffney, for the County of Cherokee, on the fourth Monday in February (one week), the fourth Monday in June (one week), and the fourth Monday in October (one week); and the Court of Common Pleas, at the same place, on the first Monday in March (two weeks), c."

This act contains the usual repealing clause that "all acts or parts of acts inconsistent herewith, are hereby repealed."

Section 27 of the Code is as follows: "Should the business before the Court of General Sessions at any term not be completed on the arrival of the day fixed by law for the holding of the Court of Common Pleas for said county, the Judge presiding may, in his discretion, adjourn said Court of Common Pleas until the Court of General Sessions shall have been concluded. But the provisions of this section shall not apply to the Courts held in the County of Newberry."

We are unable to discover wherein the act of 1905, and the foregoing section of the Code, are inconsistent.

We reach this conclusion more readily, for the reason that the law does not favor repeals by implication.

The appellant's attorneys have not argued the 5th exception, and we deem it only necessary to state that it cannot be sustained.

The 6th, 7th and 9th exceptions will be considered together.

The presiding Judge ruled that the testimony therein mentioned was irrelevant, and that it was not competent for the purpose of contradiction, as it related to a collateral question. This Court is satisfied that the testimony was not only irrelevant, but that it was inadmissible for the purpose of discrediting the witnesses for the State therein mentioned. State v. Alexander, 2 Mill's Con. Rep., 173;Sweet v. Gilmore, 52 S.C. 530, 30 S.E., 395.

We proceed to consider the error assigned by the 8th exception. This exception seems to have been taken under a misconception, as we do not understand from the record that the presiding Judge refused to allow the witness to be sworn in the presence of the jury. But, in any event, the testimony was irrelevant, and it has not been shown that the ruling of the presiding Judge was prejudicial to the appellant.

The next question for consideration is that presented by the 10th exception. When the testimony set out in the exception was introduced, the defendant's attorney said: "We object, that is not any contradiction."

The record shows that while the defendant was under cross-examination, he was asked, if he did not make the statement to John Spencer set out in the exception, and he denied the same. The testimony was competent for the purpose of contradicting him.

None of the remaining exceptions were discussed by the appellant's attorneys, and we deem it only necessary to state that they cannot be sustained.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.