State v. Green , 52 S.C. 526 ( 1898 )

The opinion of the Court was delivered by

Mr. Justice Gary.

The appellant was tried and convicted upon an indictment, of which the following is a copy, to wit: “The State of South Carolina, County of Georgetown. At a Court of General Sessions, begun and holden in and for the county of Georgetown, in the State of South Carolina, at Georgetown Court House, in the county and State aforesaid, on the second Monday of February, in the year of our Ford 1897, the jurors of and for the county aforesaid, in the State aforesaid, upon their oaths, present that Zachariah D. Green, late of the county and State aforesaid, on the 12th day of July, in the year of our Ford 1894, with force and arms, at Georgetown, in the county and State aforesaid, being the judge of probate of said county, and by virtue of said office being the public guardian, and having in his charge as such officer and guardian a certain estate, to wit: the estate of W. F. Elliott, and having funds belonging to said estate, did then and there loan of said estate’s funds as an investment, $700 to one Samuel J. Fee, now deceased, without said investment being made under the direction and with the approval of any presiding Judge, or of the Judge of the Third Judicial Circuit, which said Circuit is the one in which the said judge of probate resides, and without being upon a petition and proof that said investment was a safe and proper one, against the form of the statutes in such case made and provided, and against the peace and dignity of the said State. John S. Wilson, solicitor.”

Upon the reading of the indictment the defendant’s attorneys demurred to the same, and moved to quash it upon grounds similar to those set out in the case of The State v. Green, which has just been filed. The indictment charges simply a failure or neglect of duty, and must be regarded as framed under section 308 of the Criminal Code. The case of The State v. Green, just filed, is conclusive of the questions raised in this case.

It is, therefore, the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court, with directions to quash the indictment.

Mr. Chief Justice McIver concurs ill result.