The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1871-04-27

SUpREME CoURT-CoLUMBIA, APRIL 24.-The
court met at 10 A. N. Present, Chief Justice
Moses and Associate Justices Willard and Wright.
According to order the second circuit was called.
Jane McCrea, appellant. vs.. the Port Royal Rail
road Company. resp ndent. Struck on:
1e Tns vase as a., e. rWI IaIss , 4i 4 s M;i's aa IN ds Serf Ka n.
road Company was resumed. Mr.. mcIver was
heard for appellant. Mr.. Memminger for respon.
dent. Mr.. McIver In reply.
On motion OF MI. Barnwell. the case or Jane
McCrea VS.. the Port Royal Railroad Company was
restored to the docket.
The State VS.. George Addison. Motion refused
and appeal dismissed. Opinion by Chief Justice
Muses.. This decision establishes the following
prnciples:>.
A prosecution may date It's origin for some pur-
poses to the time OF complaint; for others to the
issulng or the warrant and arrest or defendant;
and still for others to the finding OF q bill BY the
grand Jury.
TO be pending until bill found; for until then there
is nothing TO which the party charged can answer
TECHNICALLY speaking, no change can be made
In the venue in "a criminal case" 1t Is q material
ayermenl In the lndictmeIt, aud cannot be alter.
venus, used in the act OF 1868 (page sD do no
more than confer on The. circuit judges. In the
cases and subject 70 tine PROVISIONS mentioned,
authority to transfsr the trial to another county.
The mot, n to change the trial from the county
laid as the renue canuot be made until bill found.
II ia TRAIT which alleges the D ace where the offence
Is charged To- have been cemmttted. Until Dill
found, the defendant. Is not bound to answer.
AFTER bill found, the. Judge. may exercise his dis.
erection as to the time when he will entertain q
motion to change the place Of trial. There seems
to be q propriety In not allowing 1t to be heard In
a criminal case until the Indictment g answered
| BY a plea. Latitude OF discretion as to the m
must, however, be accorded to the presiding
judge.
said act, as referring TO the party by wnon. the
notice OF the application may be made IN q crlmt-
nal case. The state, IN q legal point OF view, Is
the party interested, and the prosecuting of1cer
represents It. The prosecutor is no more a party
interested :nan any other citizen. In this state,
the solicitor ~ the o61cer charged With the con-
duct OF prosecutions. The State speaks through
| him, and no other person can be considered as
the party Interested. and therefore, authorized TO
| give the notice or make the motion.
The inclination Of courts Is against quashing In
dIctmeuts on the mott, N OF the defendant, even
for an error apparent on the face OF it, Tor ne may
have the benefit OF MS op1ecC ON molon III a.
rest OF Judgment.
Where aSldge undertakes to quash an indict.
ment on morton OF the prisoner. for matters oc-
curing in the jury room, objectionable because
OF possible prejudice TO re prisoner, an n appellate
must be had to the act Off Judge Influenced By
his sense olpublIc justice, where he Violates no
positive law ~
IL Is no OOleC1lOQ CNaICOuuocl dp'olu'Cu W 0S'
a. sol citor in the absence or that oitcer had been
retained to prosecute with the solicitor.
A so isit0r Is not Authorized, withru! the con
sent OF the presiding Judge, TO have access 70 Tile
room OF the grand jury during tleir delloera
t,ons. The practice has not been obtained Ia tut
State.
FIX p,rse Louis strobel. Order OF Circuit courf
affirmed, an. appeal dismissed. Opinion by AS
sociate Justice Willard
1.-THE death Of the husband prior to the adoption
of.tne present constitution does not deprive tnt
widow Of her right to the homestead exemption
Elk patle Kennedy and Houge vs.. House. De
cided A Ri term 1870:
'In the present case the respondent havfnt
been a party 10 the application to the jude o
prDnate TO marshal the assets an sell the real es
tate OF her deceased husband, aud having allOwet
the order OF sale to go by default. Is not barred
from setting up q claim to o hone5l cad. he
failure to answer fOr this purpose does not au
tholize us to ignore the plain sense OF the consti
tuition.
.sThe provisions OF section 81, article II, OF tn
constitution. operate In terms against the enforce
meat Of process to sell the homestead premise
for he payment Of debt. The cons. tuition ope
rates upon amt limits rhe effect Of the judg men
or order for the sale Of such lands.n
Il At2P. N. the court adjourned until Wednesday
assh, at 10 A. NJ, when rhe Fourth Circuit will b
called.