128 S.E. 722 | S.C. | 1925
June 30, 1925. The opinion of the Court was delivered by The defendant was indicted for violation of Section 472 of Volume 2, Code 1922, which is as follows:
"Any public officer hereafter to be elected or appointed, whose authority is limited to a single election or judicial district, who shall be guilty of an official misconduct, habitual negligence, habitual drunkenness, corruption, fraud or oppression, shall be liable to indictment, and, upon conviction thereof, shall be fined not exceeding one thousand dollars and imprisoned not exceeding one year."
The defendant demurred to the indictment and moved to quash. His position having been "sustained in part and overruled in part," the defendant thereupon moved to require the State to elect, which motion was refused. From the rulings of the trial Judge the defendant appeals upon exceptions which are, in substance, as follows: (1) That "the Court erred in refusing to sustain the demurrer and quash the first count of the indictment on the grounds of duplicity and multifariousness"; and (2) that "the Court erred in refusing defendant's motion to require the State to elect upon which of the charges of official misconduct, contained in the first count of the indictment, it would go to trial," in that defendant could not "be required to answer to more than one specific offense under any one count in an indictment."
Let the first count of the indictment be set out in the report of the case. On the defendant's motion to quash, the Court held as follows:
"Now under this indictment in the first count it alleges official misconduct that is charged against this party, and *240 specified every item which here says was official misconduct, and gives the defendant full notice of what the State expects to prove, in order to show that he has been guilty of official misconduct, and, that being so, I think the first count of the indictment is good, except as to this: I think this ought to go out, or you can allow it to stay in, but I will not allow any testimony to go in as to that. I think this ought to go out: `And there are divers other false vouchers not necessary here to be mentioned.' I think it is necessary to mention them."
We think Judge DeVore's construction of the first count of the indictment, to the effect that it charged the one crime of official misconduct, based upon the specific acts and transactions therein set out, was clearly correct. Of the trial Court's ruling requiring that proof of the crime charged should be confined to the specific acts of official misconduct set out in the indictment, defendant, certainly, has no right to complain. The nature of the crime charged is obviously such that it might be established by proof of one or more separate and distance acts or transactions, involving official dereliction to or a breach of duty. Under the indictment as here framed, proof of all of the specific acts charged would make the defendant guilty, not of separate and distinct crimes, but of the one crime of official misconduct, denounced by the statute. And there can be no doubt that an acquittal under such indictment would effectually bar a subsequent prosecution for the crime of official misconduct, based upon any of the specific acts or transactions therein set out. It follows that the count cannot be held bad for duplicity or multifariousness, and appellant's first exception must be overruled. See State v.Jaques,
The foregoing view requires that the appellant's second exception, charging error in refusing to require the State to elect upon which of the alleged charges *241
of official misconduct it would go to trial, shall likewise be overruled. Under the indictment as framed, the separate and distinct acts and transactions set out in count 1 are made the basis of the one offense or crime charged, that of official misconduct, and may not properly be construed as separate and distinct offenses within the purview of the rule requiring that, where "several offenses charged do not grow out of the same transaction," the prosecuting officer may be required to elect "upon which count he will proceed."State v. Sheppard,
The judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and COTHRAN concur.
