State v. Switzer

February 9, 1903. The opinion of the Court was delivered by In this case the State appeals from an order sustaining defendant's pleas of former acquittal and once in jeopardy. It appears that the defendant was acquitted on trial under a former indictment, charging: "That the said Morris Switzer, on the 16th day of March, in the year of our Lord one thousand nine hundred and one, with force and arms, at Greenville Court House, in the county and State aforesaid, did feloniously, wilfully and maliciously attempt to set fire to the storehouse, storeroom and building of the estate of one H.A. Cauble, deceased, held in trust by one R.E. Bowen, there situate, the same being within the curtilage or common inclosure of a room wherein persons habitually slept, whereby such sleeping apartment was endangered, against the form of the statute in such case made and provided, against the peace and dignity of the same State aforesaid."

The second indictment, to which the pleas at bar were directed, charged as follows: "That Morris Switzer, late of the county and State aforesaid, on the 16th day of March, in the year of our Lord one thousand nine hundred and one, with force and arms, at Greenville Court House, in the county and State aforesaid, did feloniously and maliciously attempt to set fire to the storehouse of M.H. Finlay and William Finlay, partners in business under the firm name and style of Finlay Brothers, with intent feloniously, wilfully and maliciously to set fire to, burn and consume said storehouse of said Finlay Brothers, partners as aforesaid, by kindling a fire in and attempting to burn and consume the storehouse then and there occupied by him, the said Morris Switzer, adjacent to and adjoining the storehouse of the said Finlay Brothers, partners as aforesaid, each of said storehouses being under one common roof and the same second floor, extending over and across each of the said two storehouses, and the said houses having one brick wall eight inches thick, common to both; so that by then and there kindling such fire, the said Morris Switzer did attempt feloniously, wilfully and maliciously to burn and consume the storehouse of the said Finlay Brothers, partners as aforesaid, contrary to the statute in such case made and provided, and against the peace and dignity of the State." The Circuit Court in sustaining defendant's plea held that both indictments were predicated upon the same acts, the same setting fire to the same building, and charged the same offense. The State, appellant, excepts, alleging error in holding that both indictments charged the same offense.

Art. I., sec. 17, of the State Constitution, provides: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or liberty." In order, therefore, to sustain the plea of former jeopardy and former acquittal, it must appear that the offense charged in the subsequent indictment is substantially the same as that charged in the prior indictment. This presents a mixed question of law and fact; and in so far as the facts are concerned, the finding of the Circuit Court is not reviewable in this case. But we do not understand that there is any dispute that both indictments are based upon the same act, or alleged act, of setting fire to the same building. The defendant so states in his written plea, and it does not appear to have been contested. At any rate, the Circuit Court so finds. In determining whether both indictments charged the same offense, the test generally applied is, "whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first?" State v. Glasgow, Dudley, 42; State v. Thurston, 2 McMullan, *395; 17 Ency. of Law, 2 ed., 597, and cases cited in the notes. This test, while perhaps not infallible, will generally prove useful and adequate. Assuming, as we must, that both indictments are based upon the same alleged attempt to set fire to the same building, the only difference between the two indictments is that in the first the building or storehouse was described as being "within the curtilage or common enclosure of a room wherein persons habitually slept, whereby such sleeping apartment was endangered;" whereas, in the second indictment, the same building was described as occupied in one apartment by defendant and in the adjacent apartment by Finlay Brothers as a storeroom, which latter it was alleged defendant attempted to burn, by setting fire to the storeroom occupied by himself, both being under a common roof as parts of the same building. Both indictments charged an attempt to commit arson, as defined in sec. 143, Criminal Code, which provides that "the wilful and malicious setting fire to or burning any house of whatever name or kind, within the curtilage or common enclosure of any house or room wherein persons habitually sleep, whereby any such dwelling house or sleeping apartment shall be endangered, also the wilful and malicious setting fire to or burning any * * * storehouse * * * shall be deemed arson, c." The first indictment, doubtless, sought to charge an attempt to commit the felony of arson as described in the first clause of above statute, while the second indictment sought to charge an attempt to commit arson as defined in the second clause of said statute; but it will be noticed that both indictments describe the same building as attempted to be burned, and such building was a "storehouse," the burning of which would be arson, whether within the curtilage or not. As under the statute, the burning of a storehouse of another would be arson, whether within or without the curtilage or common enclosure of a dwelling house or sleeping apartment, so it would be an indictable offense to attempt to commit arson of a "storehouse," whether such house was within the curtilage or not. When the building burned, or attempted to be burned, is one of those named in the statute specifically, it is immaterial whether such building is within or without the curtilage or common enclosure. Applying, then, the test above mentioned, the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. It is not sound to say unqualifiedly that more than one criminal offense cannot be predicated upon a single act; for when a single act combines the requisite ingredients of two distinct offenses, the defendant may be separately indicted and punished for each, as shown in State v. Taylor, 2 Bailey, 49, and State v. Thurston, 2 McMullan, 395. But, as we have attempted to show, the offense charged in the second indictment is not distinct from that charged in the first indictment. State v. Copeland, 46 S.C. 14, 23 S.E. R., 980.

Having reached the conclusion that the judgment of the Circuit Court should be affirmed on the merits, we do not deem it important to specially notice respondent's motion to dismiss the appeal upon certain technical grounds, all of which have been considered and deemed insufficient.

The judgment of the Circuit Court is affirmed.