State v. HillState v. Hill
- Reporters:
- , ,
- Before:
- Gary
The opinion of the Court was delivered by
Mr. Justice Gary.The appellant was put upon trial on an indictment containing two counts. The first count charged the breaking аnd entering of a dwelliang house with a felonious intent. The second count charged the larceny of $153.
At the close of the testimony in behalf of the State the defehdant made a motion for the presiding Judge to direct a vеrdict of not guilty as to. the first count of said indictment on the ground that there was no evidence whatever of any breaking; after argument the presiding Judge sustаined the motion and directed the jury tо render a verdict of not guilty as to the first count.
The jury failed to agree upon a verdict as to; the secоnd count, and likewise failed to render a verdict of not guilty upon the first count as directed; the inadvertencе was not noticed and the clerk of Court noted the order of mistrial,
After thе jury was dismissed the defendant’s counsel mаde a motion, “that the formal verdiсt of the jury be dispensed with and the verdict entered up. by the Court; or that judgment оf not guilty, without the rendition of a verdict be entered in favor of defendant аs to1 said first count.”
The motion was refused on the ground that it came too late.
The defendant appealed upon a single exсeption, which is as follows: “That his- Honor erred in not sustaining said motion upon thе ground that -the formal verdict of the jury сan b.e dispensed with and the verdict еntered up by the Court, or that judgment without the rendition of a verdict may be thus entered in favor of a party against whom there is a total failure of evidеnce, and upon the ground that de *417 fendant has been once in jeoрardy upon the charge set forth in the first count of the indictment herein and hе cannot again be forced tо trial upon the said charge.”
It will be observed that there is not only no sentence in this case but no verdict rendеred by the jury. The order of the Circuit Court is, ‘therefore, not appealable. State against Timmons, 68 S. C., 258, 47 S. E., 140; State against Hughes, 56 S. C., 540, 35 S. E., 214; State against Mason, 54 S. C., 240; 32 S. E., 357; State against Burbage, 51 S. C., 288, 28 S. E., 937.
It is the judgment of this Court, that the appeal be dismissed, but without prejudice to the right of the appellant hereafter to raise the question as to former jeopardy.