The Newberry herald. [volume] (Newberry, S.C.) 1865-1884, 1874-06-17
Tie DeeisiSD CT 5E:ssa Graham
ia tisa Or;augeDGrg Larceay
Gssa-'Fhe Indictment Against
JTesc% Ordered to be QuuShed.

bert. franklin J. Moses. Jr.-Tn-
dictment for Breach of Trust and
Larceny.
The question which the court is
now called or to decide arises upon a
motion made by the solicitor for a
beach warrant for the arrest of Frank
lin j. Moses, Jr. and upon a motion
made by the COUNSEL for Franklin J..
Moses, Jr., one of the above named
defendants. to strike the caSs as to
said defendant from the docket. on
the general ground that this court has
no Jurisdiction at the present time to
trv the said defendant. The question
presented is one Of the utmost gravity
and lclicacy. There is no precedent
Of an adjndged case which fully covers
the present case, and the court is conf
PEELED to reach its conclusion by the
light mainly of reason and such gene
ra! principles as may be applicable
to the ease.
The court takes judicial notice Of
the fact that the defendant, in whose
behalf aud against WHOM, the preSeut
motions are made. is the Governor Of
the State of South Carolina, and the
question st once ariseS-cau this
court arrest and try the Governor d:
the State!
The constitution of our State. III
article I, section 3, declares that ''the
Governor and all other executive aud
judicial officers shall be liable to im-
pcachnicnt, but Judgment in such
cases shall not extend further than re-
moval from office. The persons con-
victed shall nevertheless, be liable to
Indictment, trial and punishment ac-
cor;ling to law
Three facts are now made apparent
first, that this DEFENDANTS the Gov
crnor Of the State; second, that he is
liable to impeachment; and third, that
after impeachment he is liable to H.
ti;ctment. trial and punishment. Can
he be indicted, tried and punished be-
for impeachment? 1t is idle here to
hlluK consequences. II he can be in-
lictcd, he can be tried; he can be
punished by fine and imprisonment,
and the court must consider this que<-
ton in view Of the full measure OF its
logical consequences.
The reasonable construction of the
provision of our constitution: ROW
quoted, points to the conclusion that
until after impeachment the Governor
Is not liable to Indictment and trial in
the courts of the State. But in the
present instance the court does not re
" so much Upon the construction of
the provision Of our constitution as
upon what may be called the r
shadowing legal necessity of the Sc.
The constitution of the State de-
clares that "the supreme executive au-
thority Of this State shall be vested in
chief magistrate. who snail be styled
the Governor Of the State of South
Carolina" Can this supreme exccu-
tive authority be deposed and confined
in Jail by this court?
His Honor then referred to the case
of Kendall rs. United States, II Pc
terS go; the case Of the State Of
Mississippi vs. johnson, President, /
Wallace 475; the case of the State vs..
". ". Holden, g. n. G. Rep. S29;
also Grier vs.. Taylor, Governor: t
McCorl, POI. and Attorney General
vs.. Btown,l Wisconsin Rep. 5l5.
The cases now cited are those which
seem to afford most aid in solving
the question now presented to this
cour: In our Judgment they point
to the conclusion tia: under the idea
Or theory Of the separation and ludc.
pcrdancc of three departments Of our
government, there is no power adhc-
rent in cur judicial tribunals, to ar
rest or :ry, or in any mauuer or de-
cree to derose the Governor Of the
State frotn his Office.
Certainly this Indictment is idle AS
we'll as soid, if no power resides IN
this court to arrest or try the party IN
dictcd.
III effort was made in the argument
IL avoid the results Of the reasoning
uow presented, by saying that If the
sioycr::or is arrested by the court the
Lieutenant Governor, or some other
officer thereto empowered by law:
may succeed to his powers and duties.
TIL does not meet the difficulty: for
II the Governor can be arrested, the
lieutenant governor, or other officer
who succeeds him can be arrested: and
thus the State be left absolutely with
out head The fact that provision
is made to supply a vacancy in the
Office oI Governor cannot add to the
jurisdiction of this court to interfere
by criminal process against an lneum-
bent Of that office.
1t was further said, upon the arsu-
mcut Of these motions, that the de.
lcndant. Franklip J. Moses. .Ir., WIS
not here Indicted for any official act
or misconduct, but for an act done III
his individual capacity. It is true
that the Indictment does not IN terms
,a..:e the defendant officially. but this
court is obliged to say that the face OF
the Indictment di>cloSes sufficiently
the fact that tie acts or conduct which
ere there charged is crime were
done by the defendant as Governor,
while le was the Governor, and could
not have been done If he had not been
the Governor. Il follows. therefore.
that whether so charged or not, the
.csion Of this defendant, as charged
;c the indictment, was in truth Off
ci:,l action. If it was misconduct or
9 crime, It was still official mi<con-
duct or : crime committed 10y him as
U0ycrnor.
The considerations now presented
are Suificieut IN force aud authority,