*1 has sustained from the tortious any acts of the de- damages fendants in But the attachment. we do not think preventing the in the is recovery other action a judgment prere- action, this quisite which is distinct from bringing entirely an action for or car its driver. damages against offending
The record does not disclose whether action in brought by rem plaintiff against damage car, feasant or in personam or both against Galloway, car in rem against and in personam. against Galloway He had a in right either of proceed these three ways. Poston, Raines v. C.S. E. (2d) Sup- a pose case where the driver of the vehicle un- offending known or for some other reason an injured can person only proceed rem case, In such against vehicle. a offending no action under defendants’ view could ever be maintained against person fraudulently removing secreting motor vehicle for in causing rem action damage, it is essential the res be within the brought jurisdiction of the court. conclusion,
In be stated that we may are not called upon pass measure in an damages action of this The kind. allegations complaint, which be considered as must true on the demur- passing rer, show substantial damages. reversed,-with
The order demurrer is sustaining leave to defendants to answer the within complaint twenty days after the of the remittitur. filing Moss,
Stukes, Taylor, Legge, C. J., J.J, concur. STATE, HOLLMAN,
The Respondent, v. GENTLEE Appellant
(102 873) *3 Columbia, Thomson, Ehrlich Esq., Appellant, F. *4 Solicitor, Messrs. Julian Wolfe, of Orangeburg, Henry Lake, Matthews, Callison, L. General, St. T. C. Attorney Austin, and William F. General, Asst. Attorney Colum- bia, Respondent, 8, 1958.
April
Legge, Justice. was tried in an
Appellant May, under indictment counts, two viz.: (cid:127)containing officer; (1) resisting (2) assault and with intent to battery kill and murder. He was not counsel at the The represented by trial. jury having a and, returned verdict of on the first count on the guilty count, second of assault and guilty battery high nature, the trial aggravated judge sentenced him: on the count, first at serve hard labor for four or- years pay *5 second, to serve at hard labor on the $1,000.00;
fine of and jSOO.OO;the sentences to fine of or a for three years pay $1 Thereafter, in due order named. in the run consecutively this court and the follow- time, served notice of appeal he For “Grounds Appeal”; evidence based upon incompetent “1. Conviction se. prejudice per the assistance of right
“2. Denied Constitutional therefor. after request counsel on jury. to have women Denied the right “3. colored peo- to have right “4. Denied the Constitutional ple jury. the laws and violation
“5. Sentence was imposed South States Constitution United Carolina. by authorized of maximum
“6. excess Sentence law”. document, ob- this court a
Thereafter, filed with appellant For a himself, “Application designated viously by prepared to the in addition Certiorari”, he wherein charged, ofWrit mentioned, “the that: (a) before For “Grounds Appeal” not sufficient by prosecution evidence produced indictment;” and in the contained allegations support constitutes indictment in the alleged “the two counts (b) the same act by criminal inspired continuous one single order by the Chief intent”. Thereupon criminal Justice Thomson, F. Ehrlich appointed dated October of the Richland member and able an experienced Esq., his appeal”. bar, present “to County represent In- states “Questions counsel brief, In his appellant’s as follows: volved’” counsel to repre- refusal to court’s appoint
“1. Did the of law’ guaran- defendant ‘due process deny sent defendant of the Constitution Amendment Fourteenth by teed ? States the United of a jury right defendant deprived
“2. theWas both the State by of law guaranteed due process and the trial and Federal Constitutions the failure to swear the jury as Title Section Code Laws of South required Carolina, 1952? case,
“3. Under the facts of this crime com- single *6 mitted or were there two distinct and crimes com- separate mitted ? error, case,
“4. Was it under the facts of this to submit the case to the an officer jury upon charge resisting in the of his and also assault discharge duty charge and with intent to kill and murder? battery
“5. Is there sufficient evidence in the record to de- sustain fendant’s conviction of assault and of a and battery high nature ? aggravated
“6. error, case, Was it under the facts of this for the trial the law with judge reference to assault bat- charge and with intent tery to kill and murder ? error,
“7. case, Was under the of this facts trial with judge law reference to bat- charge assault and tery nature ?. high aggravated error, “8. Was it case, under the facts of this for the trial to fail to judge with law reference to charge simple assault ? error,
“9. Was it case, under the facts of this for the trial to sentence judge the defendant for the crime resisting arrest and also for the crime of a assault battery high nature?” aggravated as to circumstances lead-
There is no real controversy arrest and indictment. subsequent to the appellant’s ing up witnesses, both officers of two the State The State presented K. Patrol, who namely: Westbury, Corporal Highway J. McLeod, arrest, A. B. who corro- made the and Sergeant in certain Westbury’s testimony particu- borated Corporal The did not tes- lars to which we shall later refer. appellant offered him testified that he and the witness tify, only was not time of the arrest and that he knew at the present to the issues involved. nothing pertinent account of the Corporal Westbury’s matter was as follows : 14, 1957, On uniform, while on February duty, U. observed, 176 in Calhoun Highway he County, traveling him, toward truck with no front stakebody license plate. were, truck, Three in the cab. After negroes he passing noticed that it without and that it bore on the cargo, rear a Florida license He then turned his car plate. patrol it; driver, around to follow and as he neared it the appellant, pulled road, it, truck to the over side stopped got out, car, and lifted its hood. his Westbury, having stopped walked and asked for his up driver’s license. appellant Ap- pellant produced service license expired public and a bill truck, of sale for the but could no valid driver’s produce license. After him and the other allowing occupants truck time to search for his ample license had told the (he officer that he had both a Florida and a South Carolina driver’s license), told Westbury he would *7 have to him under arrest put no driver’s license having and for investigation. then Appellant asked if could he put bond for not up driver’s license in his having possession. that he would have to detain him Westbury until he replied check the bill of sale and ordered him could to come with him. To from Corporal Westbury’s at this quote testimony point:
“He started off in an manner orderly and all of a sudden back, me, then he into lunged pulled right around grabbing me about the I tried to him loose. I reached for gun. get my and he had it around the holster. I gun finally to managed As I loose from him I loose. shot one get got time. He back from me. At this time the in the truck got party told law, him to with the can’t you resist. At that go he time back started into me At that time I again. snapped pistol but it didn’t shoot. At this time he fell knees, down on his said, threw his hands and ‘You me’. I up got told him to get and car. He I up patrol got up. the door opened and he the car and sat I down. went got around to the driver’s side and and got my handcuffs started to those on him. put said, did not want them on. He ‘The He put only thing for is to I want to them on to beat me death’. told you put ‘No, but I have to on I him would handcuffs put you’. Dr. I him down to Huff’s office for treatment. brought had hit him in the that bullet. met foot with We then Sergeant * * * McLeod at the County Jail. Mr. were in full uniform on you
“0. Febru- Westbury, 14th, the I of this occasion? A. full ary day uniform. I on a he tore jacket had which when he for my grabbed gun.
[*] [*] [*] I “When he came into me and around he pulled hold got the coat it wide split open. Mr. “Q. was the Westbury, defendant under arrest- he when attacked A. He you? was under arrest and had to started the car me with and that when he drew back lunged me. “Q. Did he knock from or you your feet A. anything? No, sir, he did not me off feet. I get my managed stay feet but he my had around me and hand had his around the holster. gun He
“Q. had his hand —A. He had his hand around the holster of the I gun. it loose.” managed get
Sergeant McLeod testified that in to information response received on radio he went police to the county jail and there met Corporal and the that Westbury he appellant; asked what had appellant refused to happened, statement; that make witness noticed that any Corporal coat was torn. Westbury’s
We note at the outset Involved” “Questions *8 as stated in brief of counsel appellant’s purport to not include issues to be raised attempted by appel lant’s For The “Grounds record transcript dis Appeal”. closes, moreover, not one that of the to questions sought by be either “Grounds For or presented Appeal” Involved” was raised in the trial court. “Questions None us, of these being before Simonds questions properly v. Simonds, 376, 107, 93 229 S. C. our (2d) E. considera- all,
tion of of them must be if at any as a matter of given, not of grace, right.
Nor is
in better
to
consid
appellant
position
urge
eration of these
because of the fact that he
questions
was not
by counsel at
trial. It is true
represented
that where
has conducted his
one
defense
technical
person
rules are to be
with much less
than where
applied
stringency
he has been
counsel. 14 Am.
Jur., Criminal
represented
Law,
169,
884;
Owens,
220,
Sction
S. C.
p.
The record before us furnishes no foundation for contention appellant’s For that (Grounds Appeal, 1) his conviction was based evidence upon incompetent Moreover, no objection incompetence prejudice. the “Ground For testimony; made to fails any Appeal” court, with Section 6 of Rule of this Tate v. comply LeMaster, 231 E. S. C. 99 S. and the conten- (2d) it, not tion to be raised been sought having argued Saxon, is deemed to have been abandoned. Saxon v. appeal, 231 S. C.
Also without merit is-the claim For (Grounds Ap 2; Involved, peal, Questions 1) denied his constitutional be right 'by represented counsel in the trial court. The record here shows that when *9 his were case was called for trial rights explained the but the court he had no him and he stated to that lawyer, Only his own defense and was for trial. would conduct ready the the close of all of the when trial testimony, judge after the did asked if desired to his case before jury, he argue the “to attorney that court appoint appellant request make the Refusal of this jury”. argument request I, Article not error. had the under Section Appellant right, State, of this “to be heard fully 18 of the Constitution both”. his defense himself or his counsel or To by by by He not same effect is Section 17-506 of 1952 Code. does that his contend that he was deprived right; complaint that the court did not counsel to make assign argument for him. But there is in this State no constitutional or statu- court counsel for tory requirement assign any per- accused, son where the offense is a except charged capital 1952, one. Code Section 17-507. The Sixth Amendment of Constitution of the to trials in United States applies only 455, federal Betts courts. v. 316 U. S. 62 S. Ct. Brady, 1252, If, 86 L. Ed. as is in the last 1595. case suggested cited, counsel refusal defendant a crimi- appoint nal case in certain circumstances amount to may denial Amendment, the Fourteenth due process required is manifest that the facts here warrant no conclusion. such For
Grounds
3 and
not
been
Appeal,
having
are
are deemed abandoned.
argued
appeal,
They
devoid of merit. Exclusion of women from service
V,
on the
jury,
Article
Section
of the
petit
required by
Constitution
this State does not
the Fourteenth
violate
of the
States. 31
of the Constitution
United
Amendment
And there is in
the rec
Section
Jury,
p.
Am. Jur.,
discrimina
for the
racial
suggestion
ord no foundation
trial venire.
in the selection
tion
For
is without merit.
“Ground
Appeal”
The sixth
by statute
being provided
No
punishment
specific
an officer or for
as-
either for resisting
aggravated
the sentence
conviction of either
sault and battery,
is,
offense
Code,
Section 17-553 of
left to the discre-
tion of the trial court. State v.
Dalby,
S. C.
68 S. E.
633;
Charles,
v.
107 S. C.
136. Cf. State
Hall,
224 S. C.
80 S. E.
239; State v.
Self,
*10
267,
225 S. C.
82 S. E.
63.
(2d)
Of the
Involved”,
“Questions
the second suggests
that
deprived
trial
right
jury,
therefore denied
law,
due
be
process
cause the
was not sworn as
petit jury
Section
required by
38-210 of the 1952
This
Code.
contention is based solely
fact that the
of Record” on
“Transcript
as
appeal
agreed upon
solicitor,
among
the assistant attorney gen
eral, and
himself,
the appellant
does not state that the jury
was sworn. As stated in
annotation
Howard
following
State, 1917,
v.
80
588,
Tex. Cr. R.
770,
192 S. W.
in L.
1917D,
R. A.
400,
at
it is
page
very
held
generally
that the
“record” of a criminal trial must
show
affirmatively
sworn,
jury
and if it
not,
does
the conviction must
be reversed. But it is apparent from examination of the
readily available decisions mentioned in that annotation that
minutes,
the “record” referred to means- the
journal, and
other records of the trial in the office of the clerk of the
15,
trial court. Hubbard v.
Ill.
63
People,
1076;
N. E.
Mitchell,
105,
v.
561;
Mo.
97 S. W.
Slaughter v.
State,
323,
court,
Ga.
In the instant case the evidence have may warranted the inference that was wrest trying officer’s him from and with it wound or pistol kill inference, him. The declined draw jury that ac they him of the of assault with quitted and charge battery intent to kill and murder and found him of the lesser offense guilty assault and but in view of aggravated battery; Corporal are of Westbury’s we that the testimony opinion trial not in error in was judge law with reference to charging offense. was There greater no error certainly charging the law assault and battery high aggravated nature; the evidence warranted conviction of amply that offense. There is doubt as to whether appellant room for entitled to have the instructed as concerning simple jury sault, in view officer’s which testimony, arresting not controverted. But trial did and ade charge, judge think, we as to assault and assault quately, simple simple when, Moreover, at the close of the battery. charge, op was offered to portunity appellant (Code, Supplement, Section or additional instruc 10-1210) object request tions, neither; he he did any waived thereby right he have had to a fuller assault. may charge simple Anderson, 229 S. C.
turnWe now to consideration of the fifth “Ground third, For ninth and the fourth and Appeal” “Ques tions Involved”. all to They the substan point only case, in tial the vis.: whether the issue under undisputed evidence of two crimes or of appellant one. guilty only stated, As this in before was not the question presented court below and has not been raised in accordance with the rules of The fifth For appellate procedure. “Ground Appeal” is not meet specific enough 4, of Rule requirement are, court; this Section Involved” “Questions counsel, not en- no fault of through appellant’s technically titled to be considered as not served because “exceptions” But within the time Section 7-406 of the Code. prescribed by not best strict are the ends of served ad- always justice herence rules of if the record discloses procedure; clearly otherwise, that there will be a we justice miscarriage should not hesitate to the relief necessary grant prevent Owens, it. State v. supra. It is
. clear from the evidence here that resisted arrest in by violently officer. That attacking arresting the officer no sustained did not struggle bodily injury alter the nature of offense. appellant’s Under principles referred, to which we have his resistance arrest fact assault and It nature. battery high aggravated clear, however, is that unless it be equally reasonably may concluded from the of arrest and evidence that resistance offenses, assault the officer were separate punish- ment for both should not be to stand. permitted . It is elementary act constitute two may sep single offenses, arate conviction and warranting punishment the offender for each. But this rule is where only applicable there are distinct elements in not in one offense which are Law, Am. Jur., cluded the other. 15 Criminal Section act two are unlaw 63. Thus if aby single persons p. killed, killer be tried for each homicide. State fully may Corbett, E. 20 A. L. R. 328. S. C. act a firearm that where an (discharging And we have held ordinance, conviction within offends a municipal city limits) 'not, that offense does in the ab in the court for municipal sence of bar statutory prohibition, subsequent prosecution with intent to from kill) resulting for an offense (assault jurisdiction act that is beyond municipal the same Butler, 230 S. C. court. State v.
But where the act involved one charge necessarily incidental to involved in the other and merely inseparately it, S. Criminal Law one offense is committed. C. only J.
504 60. For p. if one be found of assault example, guilty
§ nature, cannot, battery of a for high he aggravated act, same be later for assault and with prosecuted battery intent to kill. like one cannot be both By reasoning, guilty of personal the same stealing property receiving prop- Powell, it to erty have been stolen. In re knowing Cf. 241 N. C. 906; State v. (2d) Coppenburg, 273; Strob. C., S. C. L. Rutledge, E.S. 289.
“The state cannot divide a identical offense single into two offenses and two impose for one punishments and the * * * same act. It is therefore an established rule that a prosecution for any of a part crime bars single any further based prosecution on the whole or a of the same part crime. When the facts offense, constitute one only although may be of division into susceptible inas for steal- parts, larceny several articles time, at the same property prosecu- tion to final for some of judgment stealing the articles will bar a of the other subsequent prosecution stealing any Law, articles taken at the same time”. 15 Am. Jur., Criminal 58. Section p.
“The in criminal practice, pleading, inserting counts, indictment or more two which relate to but one and offense, same counts to conform to the varying evi- dence, trial, itas be at the may now well set- developed tled, and, indeed, the most justified by sense of enlightened Howell, justice”. C., United States v. D. 65 F.
In the last case cited the defendant had filed a plea indictment, abatement to the which in several counts had him with charged counterfeit possession each money, count his different denomination alleging possession coin. In issue raised the defendant’s discussing plea, the court said:
“The defendant cannot be embarrassed or confounded in defense, his are, because if the three counts claimed, as it is offense, all for the same his defense on one count must nec- the others. the unlawful act into as cover essarily Dividing of coin can make as there are denominations many charges or, no difference in on the of the defendant proving, part *14 of, of various meeting proof single possession * * * that, coins. The in case of a conviction on more fear count, than one will suffer additional the defendant punish- ment, as he had been convicted for several distinct though offenses, is It is no more true of this not real or substantial. case than of the other cases which have been referred to all where the same system When pleading employed. comes, come, the time for sentence if it does imposing of the defendant will be No court rights fully protected. would, moment, for one for a a convicted permit single offense, counts, averred two or more to be differently sentenced each on of the counts as if for and dis- separate tinct offenses”.
Whether two counts in reality of the same indictment offense, one for which alone the defendant be charge may counts, sentenced he has been under both convicted though is a matter that has often been before the Federal courts and the courts of In similar states. South Carolina many ques- where a defendant has contended tion has been presented because he had was barred previously that his prosecution The in the the same offense. issue case been in for jeopardy to some of these decisions this at warrants reference bar and other jurisdictions. Switzer, 187, 513, 43 S. E. we held
In State v. 65 S. C. arson under an indictment charging attempted acquittal in- barred of a storehouse within curtilage subsequent fire, time, to the to set at same dictment for attempt not in the latter indictment was alleged same which building, Dewees, In State 76 S. been within the curtilage. have 991, an indict- 11 Ann. Cas. trial upon C. S. E. on sum of a cer- money breach of trust a ment alleging trial of the same defendant on a tain was held to bar day breach of of funds of the indictment trust second alleging date, the amount on a different same a different person variations between the two indictments held imma- being Mitchell, terial. In State v. 98 S. C. held that and enter-' acquittal burglariously breaking house in the with intent to steal dwelling nighttime indictment for
barred without break- entering, subsequent the same at the same time with the same house intent. ing, Cir., In 72, 76, Munson v. F. McClaughry, A., S., 302, 42 L. R. N. the defendant has been convicted on two counts: office with burglary (1) post building intent to commit larceny, larceny (2) postage and other from the same at stamps property building time. first same On the count he been sentenced to had im- second, for five prisonment years; to imprisonment for one year, to after the begin expiration five-year sentence. his Upon after he had application, satisfied the *15 sentence for for burglary, release on habeas it was corpus, held that the sentence to for separate larceny punishment void, and that he was entitled to To release. from quote the opinion:
“The Massachusetts, judicial tribunals of Ken- highest tucky, Pennsylvania, and have decided that Georgia burg- with intent to lary commit and at the larceny same larceny time and as a of the part same transaction not be law- may offenses, because are they as fully parts punished separate a criminal' by of a continuous act inspired single single * * * intent. for the “The Circuit Court Appeals United States authorities, Circuit, review of the Ninth after a thoughtful that, in has where one is indicted counts separate decided of a office with intent to and convicted of burglary post A. 2115], commit under section 5478 U. S. C. larceny § [18 time as a same trans part and of at the same larceny S. C. A. action section 5456 or 5457 U. under §§ [18 burglary only. he can be 1707], lawfully punished 112, 102 C. A. 410. And be v. 179 F. C. Halligan Wayne, and are larceny parts case the burglary cause such a act, same criminal single continuous by single inspired intent, evidence, the same because provable by arbitrary act, subdivision of such a criminal single inspired by intent, offenses, same criminal into numerous is unauthor- because, ized and after conviction of such a oppressive, burg- for such a lary,. trial subsequent larceny reality puts the defendant twice for the same criminal act jeopardy intent, because this and and decision of the court of the Ninth Circuit sustained eminent of its by authority reasons, and and better its by con- judgment stronger clusions is followed and this court”. adopted by
The Munson case was followed Stevens v. Me- Cir., 1913, 18, 20, A., 207 F. Claughry, S, 51 L. R. N. 390, where the defendant had been convicted under both counts of an indictment of a mail charging (1) larceny letters, pouch containing registered and other letters and packages, larceny four letters (2) contain- registered money, contents; embezzlement of their and had been sentenced to separate each count. punishment The court, that the sentence was void as to its holding excess above maximum that could be for a imposed single offense, v. supra, cited Munson and the McClaughry, cases followed, therein cited and and said: “The principle upon in these rests is or which the cases that two more decisions which are committed at the samé time offenses separate act, criminal continuing are parts single inspired offense, intent which is essential to each same criminal are but one susceptible punishment”. Devine,
In U. S. 35 S. Ct. Morgan *16 715, 1153, the court the 59 L. Ed. rejected reasoning the cases, and Stevens and supra, Munson declared “the test of of offenses is whether the same evidence identity not, them; if then the to sustain fact that both required out of one transaction does relate to and grow not charges where two defined make a offense are by statutes”. single States, 322, 1957, In Prince v. United 352 77 U. S. S. 370, 1 L. Ed. the defendant Ct. charged Act, A. 2113, Federal 18 U. S. C. Bank-Robbery under the § on one count with and on another count with enter- robbery, the bank with commit intent to He was con- felony. victed on both counts and sentenced to on the twenty years first and fifteen years second, the sentences to be served On certiorari the consecutively. Court held Supreme that the crime of with intent to commit entering robbery the crime with when the latter merged robbery was con- summated, that, and the maximum for punishment robbery under the statute sentence in excess twenty being years, thereof was unlawful.
In States, Costner v. Cir., United 139 F. (2d) 429, the defendant counts, had been convicted on two (1) for them, custodians of mail with intent assaulting to rob at and for the same time them of the (2) mail mat- robbing ter in and, their custody effectuating robbery, putting their lives the use of jeopardy dangerous weapons; had been sentenced on first count to serve five years and on the second to serve twenty-five years, the sentences to run Held: that he could be consecutively. sentenced for the only crime of completed count, under the second robbery, and that the sentence under the first count should be stricken as in- valid. States,
In Bell 75 S. Ct. v. United 349 U. L. violation Ed. the defendant pleaded guilty counts, Act, Mann two 18 U. S. A. under each C. § at the time to a different woman same referring transported, vehicle, the same in interstate commerce the pur- He was sentenced to consecutive terms pose prostitution. on each of the two counts. On certiorari imprisonment that, clearly held Court the statute not Supreme otherwise, the was a one not offense providing single liable to cumulative as punishment, controlling principle stated in the that where the statute majority being opinion does not and without fix clearly ambiguity punishment offense, for an doubt will be resolved a sin- against turning transaction into gle offenses. multiple
509 Somewhat to the issue before us is the pertinent holding States, 49, 99, in Braverman v. United 317 63 U. S. S. Ct. 23, 87 L. Ed. to the effect that where sev- conviction indictment, eral counts of an each charging conspiracy Laws, violate a different of Internal Revenue provision evidence of but a a sen- supported single conspiracy, for a tence of more than the maximum viola- penalty single tion statute cannot be sustained. of conspiracy
As to the convictions and sentences illegality multiple for crimes see Ex inherently parte involving continuity, Snow, 274, 556, 658, 120 U. S. 7 S. 30 L. Ed. and Ex Ct. Nielsen, 176, 672, 118, 131 33 L. Ed. parte U. S. 9 Ct. both of which arose under the Acts of aimed at the Congress Utah, in the Stat. polygamy Territory suppression 31, 3.§ State,
In Alderson v. E. it Ind. 168 N. an that defendant had drawn a officer. appears pistol He was found guilty: (1) drawing deadly weapon sentenced to for which he was (statutory misdemeanor), for a fine and be State Farm pay the Indiana imprisoned months; crime when to commit a six and (2) attempting armed with a for which he pistol (statutory felony), one for not less than year sentenced imprisonment that, held not more five On the court than years. appeal been an of the essential pistol having part drawing to be considered as sentence for was felony, separate effect. and of no surplusage Steadman,
In State v. S. C. two defendant had been tried under an indictment containing counts, follows: violation of the code section making as (1) one an abortion the death it a for felony produce causing child, of another sec- of the unborn violation code (2) abortion, it unlawful for one to tion which made produce 1112, 1113. She had been convicted on the Code §§ first count and sentenced to seven years’ imprisonment; had been silent as to the second count. On verdict appeal were set aside because the evidence and sentence judgment count; did not on the conviction first and the case support remanded new trial on the second count. Convicted Steadman, trial, she 216 S. C. *18 upon appealed,. that, both counts of the contending indictment been the submitted to the at former jury having trial, her conviction on the first count on implied acquittal second, court, and that therefore the trial its refusal indictment, on second trial to her had quash placed twice in for the offense. The jeopardy same majority opin- contention, on the second this rejected appeal upon ion that the ground inference of on the second count acquittal which had rested the existence of the verdict upon guilty count, on the first had been removed the reversal of that verdict on the first That of interest here appeal. opinion because, in its discussion of double restates jeopardy, rule declared in State v. Dud. Law 23 S. C. L. Glasgow, Switzer, Dewees, State v. v. supra, supra, and State that former conviction is a bar to an- whether a determining is whether the other the test generally applied prosecution the second indictment would evidence to support necessary conviction been sufficient to a legal upon have procure first.
It is that “the test of say identity oversimplification same evidence is .offenses is whether the to sustain required Switzer, is, v. them”. That test as was said supra, But must be reasonably useful and generally adequate. it. in its can lead to inflexible
applied; literality interpretation Switzer, For in State v. supra S. C. absurdity. example, [65 that the storehouse “with- 514], 43 S. E. evidence in the was not to sustain un- conviction curtilage” required Dewees, indictment; der second in State v. supra, evi- embezzled, dence of the amount and of the date of money offense, indictments; varied under the two and in State Mitchell, as supra, evidence well as breaking entering indictment, under the first but not under the required second; in each of those cases the yet under the prosecution indictment was held double jeopardy. second The test must, too, above stated be considered in the law, of the settled rule of light to which we have referred, already offense is where'the essentially one, the state substantially cannot divide it into single two or more offenses for each punish separately.
We need not speculate whether in the case at bar might have been properly as two punished separate crimes, under indictment, the two counts of the if he had first and thereafter passively, resisted his violently, arrest. (cid:127)There is no evidence here of or non-violent resist- passive ance; the conclusion is inevitable that his assault of, officer was the from, essence his resistance inseparate of arrest. It follows that his conviction and sentence for ag- gravated offense, assault and as a battery cannot be separate to stand. permitted
Had the sentences under the two counts been ordered to run concurrently, appellant would be entitled to no relief here, for concurrent sentences do not double impose punish ment, the,.sen but rather a single measured punishment by tence for the highest offense of which grade the defendant has been convicted. Into properly that sentence the other concurrent sentences there in fact no merge; punishment in a shorter sentence that runs with it. An in concurrently discussion teresting subject concurrent sentences under counts of an multiple indictment where crim a single inal act is a composite several included offenses is to be found in the recent case of ex rel. People Maurer v. Jack son, N. Y. 159 N. Y. S. (2d) N. E. (2d) 282. (2d)
Had been appellant given sentence on both single general counts, remand for would been resentencing have necessary because of the impossibility determination this by court of how much of the sentence had been with refer- imposed ence to the first count and how much with reference to the second. Cf. v. Kaufman, 18 N. 112 A. J.
But such is not disposition here. The required two offenses in the indictment were treated 'charged crimes; as separate count verdict was rendered on each separately; separate that in cannot assume sentences were We imposed. impos- court influ- sentence under the first count the trial was to under the second enced the fact by punishment its follow upon completion. and sentence under the first
We affirm the judgment count, officer; offense under the charged resisting here, been, an in- count under the evidence second having of the crime of which was properly separate part first, and sentence under convicted under the the judgment the second count are reversed. counsel,
We take this occasion to commend appellant’s court, able this for his appointed vigorous presenta- tion of the herein. appeal J.,
Taylor, concurs. Oxner, in concurs result. J., Moss, J.,C. concur and dissent J., Stukes, part part.
Stukes, Chief (dissenting part). Justice I would follow the rule indicated our former decisions and affirm the sentences which were the trial imposed by court. I with the agree of the other disposition questions which are dealt with in the of Mr. opinion Legge. Justice which He cites no from involved jurisdiction decision any view, I that is and have contrary my resistance of arrest found none. *20 the of of common
The evidence verdict the justified guilt arrest assault and law offenses of and (2) (1) resisting of a and nature. battery high aggravated decisions, above, State Our former referred to are: v. Bozven, 58, which, an indictment contain- S. C. upon counts, of an officer two verdict of guilt (1) resisting ing and assault and was and affirmed on battery, upheld (2) Shaw, 359, 322, State v. 104 S. E. in which C. 89 S. appeal; officer convic f the defendant of an and (1) resisting assault and (2) and battery high nature aggravated affirmed, Robertson, State 509, and v. E. 191 S. C. 5 S. 285, in which (2d) the defendant was indicted two upon counts, officer, a at an and' assault- (1) pointing pistol (2) and the the ing, obstructing, officer in hindering opposing performance of his duty; the verdict was of resist- “guilty law, officer of Not of counts.” other The last guilty cited case was reversed for new trial of an because omission from the of, instructions to the without criticism or jury, comment indictment. upon, multiple
I do not think that court should these decisions ignore because now at issue was not point discussed them. It was involved clearly and bench and bar acceptance by of trial and conviction counts of re- upon separate (1) sistance of an officer and him, (2) assault is conclu- upon sive to me that there has never been in this any question State of and of counts convictions propriety multiple such cases.
To mind the The my rule is entirely logical. person an officer of dual As a he is citizen is entitled aspect. private to freedom from assault his anas unprovoked upon person; officer, no one has to resist a him when he right undertakes to make a lawful arrest. Thus result two crimes when the arrest assault, resistance of an unlawful accompanied by and no sound ground merger Resistance of law- appears. ful arrest an officer is crime; a serious very here it a one-man rebellion against State. authority reflect the
The North Carolina decisions neighboring 167, 7 same v. 217 N. situation as ours. In State C. Wray, 468, E. defendant was convicted resisting (2d) officers assault with obstructing deadly weapon, under criminal In the earlier case of State statutes. separate Dula, v. N. C. 6 S. E. conviction was affirmed an indictment which assault with charged deadly (1) officer. In the late weapons (2) resisting case 240 N. Mobley, C. *21 14-5 warrants charging court was in a recorder’s
the trial arrest, sim- drunkenness, and (3) resisting (2) (1) public drunken- not of public The verdict was guilty assault. ple (2) arrest ness, guilty resisting but guilty (1) con- reversed upon conviction was assault. The simple in the lengthy Nowhere was unlawful. clusion that the arrest conviction even hinted that multiple was it opinion Instead, one. the op- been the arrest a lawful had improper court which of the in the mandate view indicated is posite be treated “Hence, the arrest must includes the following: * * * Therefore, motion for judg- the defendant’s as illegal. arrest nonsuit, of resisting both as to charge ment as of allowed, it is ordered.” assault, so should have been 715, 716, Scott, 24 L. R. v. So. State In 123 La. S., 199, there is a from A., 17 Ann. Cas. quotation N. 15,636, 2 v. No. Wash. C. Lowry, States Fed. Cas. United me, in is as part of which not available C. the report for him officer attempting “It is not necessary (the follows: to- length per- the defendant) proceed arrest would constitute defendant; conflict with sonal for officer the defendant, even though distinct a. offense added.) succeed.” (Emphasis should of arrest all, resistance most, other States In if not the offense constitute crime and to statutory officer is a an by force, constructive. actual or include must the means used In circum- those S., Justice, (2d) p. Obstructing C. § J. sta- into the assault there is reason merger stances where resistance; in this jurisdiction not so offense tutory of- common law necessary is ingredient force not a v. Lowry, States In the words of United fense of resistance. constituted the defendant the force here used by supra, Hailey, old case of Strob. In offense. our distinct of lawful obstruction process, held that any it was of a legal or the omission active means whether be offense. an indictable duty,
Moss, concurs. J.,