State v. Robinson , 27 S.C. 615 ( 1888 )

The opinion of the court was delivered by

Me. Justice MoIveb.

Under an indictment for murder the defendant was convicted and appeals upon the several grounds set out in the record. The defence relied on was that the prisoner was insane at the time the deceased rvas killed. It does not appear that the prisoner was claimed to be insane at the time of the trial, and therefore incompetent to conduct his own defence, or instruct counsel in the management of his case, and hence we need not consider what would have been the proper course in such an event.

The first error assigned covered by the first and second exceptions, is that the Circuit Judge refused to charge the jury as requested by the counsel for defendant, “that if the defendant is proved upon this trial to be non compos mentis, the court is authorized to send him to the asylum,” saying “that said request involved matters outside of the case.” We agree with the Circuit Judge, as this was a matter with which the jury had no concern. The entire charge to the jury seems to be set out in the “Case,” from which it appears that the jury were fully instructed as to the law of insanity and its effect, if established, so far as the province of the jury was concerned. They were explicitly told that if they believed the prisoner was insane at the time the homicide was committed, he must be acquitted, and it would have been wholly outside of the issue which the jury were called upon to try to inform them as to what authority had been conferred by statute upon the judge in the event that the prisoner should prove to be insane at the time of the trial. That was a matter with which the jury had nothing whatever to do. The province of the jury was simply to pass upon the issues of fact arising in the case, and they had nothing to do with the consequences of their verdict. State v. Gill, 14 S. C., 415. See, also, State v. Coleman, 20 S. C., 454-5.

The third, fourth, fifth, and sixth exceptions all impute error to the Circuit Judge in various forms for violating the provisions of the constitution in charging on the facts. A careful consideration of the charge fails to disclose a single instance in which the Circuit Judge either expressed or intimated any opinion as to the facts. The main ground of complaint seems to be his cautions to the jury not to allow their sympathies to influence their verdict. In this there surely was no error. The language of the Circuit Judge, -which seems to be specially relied upon in support of this allegation of error, is taken from that portion of the charge in which the judge is explaining to the jury what is a reasonable doubt — that it must be a doubt growing out of the facts of the case, and not a doubt generated by sympathy for the accused. In this there was certainly no error, nor is it any intimation of the opinion of the Circuit Judge as to any of the issues of fact involved. It was simply a proper instruction for the guidance of the jury in forming their own opinion as to the facts, uninfluenced by improper considerations, or mere conjecture, not based upon any fact appearing in the case relevant to the issues involved.

The only remraining inquiry is whether there was any error in refusing the motion in arrest of judgment. The indictment concludes in these words, “against the peace and dignity of the same State aforesaid,” whereas the Constitution, in art. IV., sec. 31, declares that “all indictments shall conclude, ‘against the peace and dignity of the State.’ ” It will be observed that all the words required by the constitution are found in this indictment, and the only difference is that two additional words, “same” and “aforesaid,” not in the constitutional provision, are used in this indictment. The question, therefore, is whether these additional words vitiate the indictment. It is quite clear that the added words do not in the slightest degree vary the sense, nor do they obscure it, but, on the contrary, rather make the language more plain and pointed. In the previous part of the section it is declared that “all prosecutions shall be conducted in the name of the State of South Carolina,” and the additional words found in the conclusion of this indictment — “same” and “aforesaid” — only serve to point more plainly and distinctly to the particular State whose peace and dignity has been violated.

The question, however, has been adjudicated in this State in favor of the view which we adopt, that the conclusion of this indictment substantially conforms to the requirement of the constitution. State v. Washington, 1 Bay, 120, 1 A. D., 601; State v. Anthony, 1 McCord, 285. It is argued, however, that these decisions were made under the constitution of 1790, in which the words prescribed for the conclusion of an indictment were not placed within quotation marks, whereas in the present constitution such words are placed within quotation marks, showing that it is necessary to use the prescribed words, and no others. While we must confess that we are unable to perceive the force of this argument, it will not be necessary to consider it further, inasmuch as the fact upon which it is based is wanting. In the constitution of 1790, as it appears in 1 Statutes at Large, page 189, the words in which every indictment is required to conclude, are placed within quotation marks, just like the words now prescribed by the present constitution, and hence the cases above cited are direct authority for the conclusion herein adopted.

It seems to us that the correct view of the matter was taken in the case of the State v. Hill, 19 S. C., 435. In that case one of the grounds of the motion in arrest of judgment was that the writ of venire did not run in the name of the State of South Carolina, as required by section 31, of article IV., of the present Constitution. The writ commenced, “The State of South Carolina, County of Spartanburg, to the sheriff of Spartanburg County,” and it was held that the addition of the words— “County of Spartanburg” — did not impair the validity of the mandate, as they might be regarded as surplusage. So here, although the constitution requires that all indictments shall conclude “against the peace and dignity of the State,” yet the concluding words of this indictment — “against the peace and dignity of the same State aforesaid” — is a substantial compliance with the mandate of the constitution, as the words italicised may be regarded as mere surplusage.

The judgment of this court is, that the judgment of the Circuit Court be affirmed, and that the case be remanded to the Court of General Sessions for Beaufort County, in the State of South Carolina, in order that a new day may be assigned for the execution of the sentence heretofore imposed upon the defendant by the said Court of General Sessions.