State v. Lark, 42 S.E. 175

The opinion of the Court was delivered by

Mr. Justice Jones.

Thе defendant, indicted for murder, was found guilty of manslaughter, and before sentence was passed moved in arrest of judgmеnt on these grounds: “i. Because it appeared on the face of the indictment that the bill was found‘at a Court begun to be holden on the ioth of February, 1901, and that the offense was alleged to have been committed on the nth dаy of October, 1901; so that it would ‍‌‌​‌‌​​‌​​‌‌‌‌​‌‌‌‌‌‌​​‌‌​‌​‌​​‌‌​​​​‌‌‌​‌‌‌​​‌‌‍appear that the bill of indictment was found several months before the offense wаs committed. 2. Because the indictment alleges ‘that the said Walter Lark, him, the said Will Harmon, then and there feloniously, wilfully and of his malice aforethought, with a stone or iron hammer, did strike, &c.’ The use of the disjunctive conjunction ‘or’ in the description of the instrument used, making the indictment fatally defective for uncertainty.” The motion was overruled and the defеndant was sentenced. The appeal assigns error in refusing to- arrest judgment upon the grounds stated.

1 It appears that the motion in arrest of judgment is based upon objections to the indictment for defect apparent on the face thereof. Sec. 57 Townsend’s Code provides that “every objection to any indictment for any defeсt apparent on the face thereof shall be taken by demurrer or on motion to quash such indictment beforе the jury shall be sworn and no-t afterwards.” The purpose and effect of such legislation is to- prevent motions to аrrest judgment on grounds based ‍‌‌​‌‌​​‌​​‌‌‌‌​‌‌‌‌‌‌​​‌‌​‌​‌​​‌‌​​​​‌‌‌​‌‌‌​​‌‌‍upon defects in indictment apparent on the face thereof. It is true, that such grounds wеre taken by the defendant’s counsel by demurrer or motion to quash before the jury were sworn- and the same were overruled, but no exception is taken to- the ruling of the Court on the demurrer or motion to quash, and in the absence оf such exception, the action of the Court in that regard is no-t properly under review. This is sufficient to require a dismissаl of the appeal.

2 We will, however, add some observations in reference to the matters upon which а reversal is sought. Sec. 56 Criminal Code provides : “Every indictment shall be deemed and adjudged sufficient and good in law which, in аddition to allegations as to time and place as now required by law, charges the crime substantially in the languagе of the common law ‍‌‌​‌‌​​‌​​‌‌‌‌​‌‌‌‌‌‌​​‌‌​‌​‌​​‌‌​​​​‌‌‌​‌‌‌​​‌‌‍or of the statute prohibiting the same, or so plainly that the nature of the offense chаrged may be easily understood, &c.” Sec. 60 Criminal Code provides: “Every indictment for murder shall be deemed and adjudged sufficient and good in law which, in addition to setting forth the time and place, together with a plain statement, divested of all useless phraseology, of the manner in which the death of the deceased was caused, charges that thе defendant did feloniously, wilfully and of his malice aforethought, kill and murder the deceased.” The second objectiоn to the indictment relates to the allegation as to the instrument with which death was caused, and it is contended that the use of the disjunctive “or” in the phrase “with a stone or iron hammer,” is fatal for uncertainty and repugnancy. But there is nо uncertainty in the statement of the manner in which the death of the deceased was caused. The charge plainly informs the defendant that he is called upon to answer for a homicide committed, not by poisoning, drowning, strangulаtion, stabbing, shooting with gun or pistol, &c., but by striking on the head with some hard, blunt instrument, a stone or iron hammer. Whether the particular • instrument used was a stone or iron hammer, was not material in the information necessary to the Court to enable it to determine whether a crime of which it had jurisdiction was charged, ‍‌‌​‌‌​​‌​​‌‌‌‌​‌‌‌‌‌‌​​‌‌​‌​‌​​‌‌​​​​‌‌‌​‌‌‌​​‌‌‍and what punishment to impose in case of conviсtion, nor was it necessary to enable defendant to prepare for his defense, nor was it necessary in thе event of a plea of former acquittal or conviction. It is true, that an indictment must not charge the offense disjunctively, as shown in State v. O’Bannon, 1 Bail., 144; but the indictment does not violate this principle, for both the offense and the punishment therefor are the same, whether the instrument of death was a stone or hammer.

3 The other objection to the indictment, viz: that it shows upon ‍‌‌​‌‌​​‌​​‌‌‌‌​‌‌‌‌‌‌​​‌‌​‌​‌​​‌‌​​​​‌‌‌​‌‌‌​​‌‌‍its face that the bill of indictment was found before the offense was committed, is equally untenable in arrest of judgment. Such objection would be.fatal if, in fact, the indictment was found before the alleged time of the crime chаrged; for it would be absurd to charge the commission of a crime after the finding of the indictment. The indictment, however, сharges that defendant, on the nth day of October, 1901, “did strike and wound,” “did kill and murder” the deceased; thus also shownig on its face that the сrime charged was a past offense, and committed before the finding of the indictment. The recital in the caption is alone relied on to show that the offense was charged to have been committed before the finding оf the indictment. But the best evidence of the time of the finding of the indictment was the Court journals, of which, doubtless, the trial Judge tоok notice. The cases of State v. Williams, 2 McCord, 301, and Vandyke v. Dare, 1 Bail., 65, show that the caption of an indictment is no part of the finding of the grand jury, and may bе corrected and amended at any time by the journals of the Court; and the case of the State v. May, 45 S. C., 509, 23 S. E. R., 513, shows that under sec. 58 Townsend’s Code, an indictment charging that an offense was committed in a certain year ma}’ be amended on the trial by inserting the proper year. As a matter of fact, the recital in the caption was erroneous, becаuse the 10th day of February, 1901, fell on Sunday, and it was impossible that the Court should have begun to be holden on that day; and the Judgе doubtless knew from the journal of the proceedings of the Court, begun to be holden by him on the 10th day of February, 1902, at which term the defendant was brought to trial, that the indictment was, in fact, found during that term. Defects in indictments which may be cured by amendment are not good grounds in arrest of judgment.

The judgment of the Circuit Court is affirmed.

Case Details

Case Name: State v. Lark

Court Name: Supreme Court of South Carolina

Date Published: Jul 3, 1902

Citations: 42 S.E. 175; 64 S.C. 350; 1902 S.C. LEXIS 139

Court Abbreviation: S.C.