State v. Philips

53 S.E. 370, 73 S.C. 236, 1906 S.C. LEXIS 172

• Court: Supreme Court of South Carolina
• Decided: February 15, 1906
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice; Gary.

The defendants were found guilty upon an indictment charging them with stealing a cow, the proper goods and chattels of W. J. Bates, agent for the estate of Cornelia Bates. They made a motion for a new trial on the minutes of the Court on two grounds, to wit: “First, that under the evidence in the case, the defendants should not have been convicted, for that the State had failed to make out its case beyond a reasonable doubt. Secondly, that under the undisputed evidence in the case, it appeared that the property alleged to have been stolen, was not the property of W. J. Bates, in whom ownership was laid in the indictment.” The motion was refused, and the defendant Hampton Philips appealed upon exceptions which will be set out in the report of the case.

1 First exception: Section 57 of the Criminal Code provides that “every objection to- any indictment for any defect apparent on the face thereof, shall be taken by demurrer or on motion to quash such indictment, before the jury shall be sworn, and not afterwards.” The question whether the words “agent for the estate of Cornelia Bates” should be regarded as descriptio personae and, therefore, mere surplusage, or as intended to show that W. J. Bates had only a qualified right in the property, and that the estate of Cornelia Bates was the real owner thereof, should have been raised by demurrer or motion to quash the indictment, before the jury was sworn.

2 But even if those words had been struck out of the indictment, the testimony tended to show that W. J. * Bates had the lawful possession of the property, and such possession was sufficient to' sustain the indictment.

W. J. Bates testified as follows: “Did you know Mrs. Cornelia Bates? Yes, I did. She was my mother. What business relation did you hold towards her? I was her agent before her death — that is, the agent for her estate. Did that estate have any cattle? Yes, it did. About last June what happened to' those cattle? About the 20th June I was informed that one of them had been driven off the range.”

In the case of State v. Addington, 1 Bailey, 311, it was held that in an indictment for larceny, the property may be laid in one who' had merely the lawful possession.

3 Second and third exceptions: The only error assigned by these exceptions is that the charge was in violation of the provision of the Constitution prohibiting Judges from commenting on the facts. The charge merely stated a rule of evidence and, therefore, does not come within the inhibition of the Constitution.

4 Fourth, fifth and sixth exceptions: The general rule is that “after the common enterprise is at an end, whether by accomplishment or abandonment, is not material, no' one is permitted by any subsequent act or declaration of his own, to affect the others. His confessions, therefore, subsequently made; even though by the plea of guilty, is not admissible in evidence, as such, against any but himself. If it were made in the presence of another and addressed to him, it might in certain circumstances be receivable on the ground of assent or implied admission. In fine, the declarations of a conspirator or accomplice are receivable against his fellows, only when they are either in themselves acts, or accompany and explain acts, for which the others are responsible; but not when they are in the nature of narratives, descriptions, or subsequent confessions.” Greenleaf on Evidence, section 233; State v. James. 34 S. C., 49, 12 S. E., 657; State v. Brown, 34 S. C., 41, 12 S. E., 662.

When a defendant makes a declaration in the presence of his co-defendant, such statement is not binding upon the latter unless he assents to it. While the charge without this qualification stated the rule too* broadly, the error was not prejudicial, for the reason that the defendant John Heyward (who did not appeal) did not make any declaration in the presence of Hampton Philips, except to deny statements made by his co-defendant. Furthermore, both the defendants went upon the stand as witnesses, and reiterated their former declarations.

3 Seventh and eighth exceptions: In properly defining a reasonable doubt, it can not be successfully contended that the presiding Judge charged upon the facts.

It is the judgment of this Court, that the appeal be dismissed.