State v. Robinson , 31 S.C. 453 ( 1889 )

The opinion of the court was delivered by

Me. Justice McGowan.

The defendant was tried at the July term (1888) for Barnwell County, for an assault with intent to kill, alleged to have been committed on the person of one Felix Furman. The indictment charged as follows, vis.: “That Thomas Robinson, late of the county aforesaid (Barnwell), oh the fourth day of May, in the year of our Lord one thousand eight hundred and eighty-eight (1888), with force and arms, &c., &c., in and upon Felix Furman, in the peace of God and the said State, then and there being, did make an assault, and him, said Felix Fur-man, then and there, with a certain pistol, did shoot at, with intent him, the said Felix Furman, then and there, feloniously, wilfully, and of malice aforethought, to kill and murder; and other wrongs, to the said Felix Furman, then and there did, to the great damage of the said Felix Furman, against the form of the statutes, in such case made and provided, and against the peace and dignity of the ‘same State aforesaid,” &e. The defendant pleaded not guilty, and the jury found a verdiet of “guilty of an aggravated assault and battery.’’

The presiding judge refused a motion to arrest the judgment, and pronounced sentence as for uan assault of a high and aggravated-nature,” &c., under the statute; and the defendant appeals, renewing here his motion in arrest of judgment, on the grounds: “1st. In that the indictment charged an assault with' intent to Mil by shooting at one Felix Furman, and there is no allegation of any battery; hence a verdict of ‘aggravated assault and battery is unsupported by any allegation in the indictment. 2nd. For that the defendant could not be convicted of ‘aggravated assault and battery,’ there being no count in the indictment charging him with that offence; and as the indictment does not charge a battery, it is respectfully submitted, that he was not called upon to meet it, and, therefore, the judgment should be arrested.”

It is quite clear that the indictment charged an offence cognizable by the court, viz., an assault with intent to kill, by discharging a pistol at the person of Felix Furman. The verdict of the jury, however, went beyond the charge, and found the defendant guilty of something more — a battery. No battery was charged in the indictment, and to that extent the verdict was unsupported. But does that necessarily make the whole verdict bad ? — so unauthorized and irregular as to require the court to arrest the whole judgment, including, also, the conviction for an assault, which was well charged? We can hardly think so. It is within the province of the court to construe a verdict, “which, being the finding of lay people, need not be framed under the strict rules of pleading, or after any technical form. Any words which convey the idea to the common understanding will be adequate. * * Surplusage, which is harmless, may be stricken from a verdict, the same as from pleadings” (Bish. Crim. Proc., § 1005).

It seems the rule is, that words will not be stricken from a verdict as surplusage if the matter so rejected affects the sense of the part which still remains; or, as stated in the case of Weilcman v. Charleston, 2 Speer, 371: “It is only when a verdict, before certain and valid, according to a fair construction, has been cumbered by the addition of useless matter, not qualifying the previous meaning, that the addition can be rejected as surplus-age,” &e. Here “an assault” was in terms alleged and so found; and the unauthorized finding of a “battery” was simply additional — supplemental—and in no way qualified the previous meaning and finding of the “assault,” and, as it seems to me, could be struck out, leaving the verdict as if it had been rendered alone for an assault of a high and aggravated nature. An assault is a separate and distinct thing from a battery, and why may not a finding be good as to one and bad as to the other, especially when the latter is bad only for the reason that it was not charged in the indictment ? It seems to us that it would be a strange and over-technical result, if the addition to a verdict of unauthorized expressions — utterly without force for any other purpose — should yet be construed to have the effect of destroying altogether a verdict otherwise good and valid — or to the extent that it is perfect.

Assuming, then, that the words, “and battery,” were properly disregarded as surplusage, we must consider the verdict as if it had been rendered “guilty of an aggravated assault.” But in this view, it is further urged, that this was not the very offence with which the defendant was charged in the indictment — the offence charged being an assault with intent to kill, and that found being an assault of a high and aggravated nature. We think the offence found was charged and included in the body of the charge of assault with intent to kill, as the charge of manslaughter is embraced in the charge of murder. It is true that, with special reference to the jurisdiction of the court, our statute does speak of “assaults and batteries and other breaches of the peace of a high and.aggravated nature.” Gen. Stat., § 824. But we do not understand that the purpose was to create a new and distinct offence of that character, but rather to indicate a class of cases, of which the Court of General Sessions had jurisdiction. See State v. McKettrick, 14 S. C., 354. There is, as we conceive, nothing in the verdict, with the surplusage stricken out, which is inconsistent with the offence charged. As it seems to us, the terms used in the statute, “assaults of a high and aggravated nature,” adopted by the jury in framing their verdict, were not inappropriately used, to express the grade of an assault less than one “with intent to kill,” which most certainly is one of “a high and aggravated nature.”

Now, if (as we have a right to do) we supplement the verdict, the surplusage being stricken out, by the formal and technical words, “in manner and form as set forth in the indictment,” it will clearly appear that the verdict, though finding a less offence than the one charged, was in precise response to the issues made, and sufficient to support the judgment. “In general verdicts, modo et forma being merely technical words, may be supplied, for the inquiry of the jury, being properly confined to the facts comprized in the issues, it must be intended that whatever facts may be found are according to the allegations made, unless a different intention can be inferred from the verdict.” Weikman v. City Council, 2 Speer, 374; Commonwealth v. Judd et al., 2 Mass., 329. If, however, the words of the statute, in reference to “assaults of a high and aggravated nature,” must be considered as creating a new and different offence, of which the jury convicted the defendant, then that offence, being of the same general character, but of lower grade than that charged in the indictment, we do not see why the jury could not, under the charge of assault with intent to kill, find an assault of lower grade; as, for instance, one without the intent to kill, or of a high and aggravated nature, upon the plain principle that the lesser is included in the greater, the charge of which includes and covers also the charge of the lesser offence, as in murder and manslaughter. See 1 Bisk. Crim. Proc., §§ 1001 and 1016, and State v. Gaffney, Rice, 434.

The State v. Wilburne, 2 Brev., 296, and State v. Chreighton Bell, 1 Nott & McC., 256, wmre both cases as to the finding of a grand jury, in which it was held that the grand jury must find billa vera or ignoramus and nothing more. These cases have no application here. The case from Rice, supra, was in reference to the proper construction of the statute of 1821, making it murder to kill a slave with malice aforethought, and also creating a new statutory offence of “killing in sudden heat and passion.” In delivering the judgment of the court, Judge Earle said: “The general rule is, where the accusation includes an offence of inferior degree, the jury may discharge the defendant of the higher crime and convict him of the less atrocious. * * * We conclude, therefore, that under the act the greater offence includes the lesser, to the same extent and for the same reason that murder includes manslaughter at the common law. * * * It is supposed, however, to be at variance with the rule of criminal pleadings, which requires statutory offences to be set forth precisely in the words of the act. In point of fact, the greater offence is set forth precisely. The true objection is, that killing ‘in sudden heat and passion’ is not laid in the indictment, and, therefore, the defendant cannot be convicted of it. If the objection had been made on the trial, the answer would have been, ‘The defendant is on trial for killing a slave [assault with intent to kill in this case] ; the degree of guilt depends upon the proof, and the offence will be established by the verdict.’ The offences are, in fact, only different degrees of guilt, arising out of the same act, and the verdict having acquitted of the murder, may be considered as inserting the words necessary to constitute the inferior offence, and thus makes the record a bar to another prosecution, or it may be regarded as a special verdict, which the jury have the same right to find in criminal as in civil cases, and the degree of guilt is a conclusion of law from the facts found. We think there is the same reason for allowing this course in statutory offences as in offences at common law,” &c.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.

Mr. Chief Justice Simpson.

It appears to me, that although the defendant has been convicted by the jury of an offence not charged in the indictment, yet the offence charged is embraced in the one of which he has been convicted. He has, therefore, been convicted of the offence charged, as well as of an additional offence. But the sentence and punishment were expressly confined to the offence charged. Such being the fact, I see no reason why the judgment below should not be affirmed. I have, therefore, concurred in the opinion of Mr. Justice McGowan.