The Fairfield herald. [volume] (Winnsboro, S.C.) 1849-1876, 1875-11-10

+ provided in page 95 section 81. Unde,
this statute the first indictment was
brought. The, second. indictment
for breach of trust is based on the
statute, page T16, section II, the
punishment for which is provided
on page 742, section s. He then
proceeded to controvert the argu.
ments of the defence. The question
is, now, whether the facts proven in
the first indictment would also have
proven the offence charged in the
second. The state does not deny
that a portion of the evidence re-
quired in this trial would have
u proven the first. Blu the evidence
does not stop hero. The state now
proposes to so further and prove
not only that the treasurer did not
turn the money over, but moreover
that he embezzlcd it, -
/! Tho statute. under which the first
Indictment WAS drawn is simply III
tended to regulate tho action of
county treasurers and to prevent
them locking up the public money
III their safes OF speculatine on it.
That is all. The offence charged
was the refusal to report on the 18th
March, The second indictment
charges that tho embezzlement WIS
committed on tho 31st March
/, These are two separate offences,
under two separate statutes. In the
State vs.. Nathan s Richardson page
261, the court held that conviction
for rape did not bar conviction for
robbery where both offences were
committed ut the same Tina. U.
S. VS.. Rldambush, II Curtis, was
also cited. Wharton in his Crimi,
mol Law, Vol. /, section. 5;5 says:
1t miy generally said that the fact
that the two offences form part of
tho same transaction is of no avail
when the prisoner could not have
been convicted of the sc"ond offence
under the first Indictment, l Whar-
ton 561 was also cited also Waite 3
Digest. In other words it is laid
down that one may be convicted Of
II minor offence and then convicted
ofn njor offence afterward. Wha"-
ton Vol /, Section 3G3 says that II
conviction for assault with intent
to kill will not bar n conviction for
murder. In tl,is case tho state first
charged the defendant with having
fai!e:l 10 pay over money collected
And now tho defendant still refusing
to pay over this money the state
charges him with havin & embczzlel
It. These are not the.,sanc offences,
for the. indictments aro different, the
charges are different and the cvi-
dcnce necessary to prove the first
would not have proven the second,
for the first Indictment did not
charge embczzlement.
The court said the question is
whether the indictments aro idcnti-
cal. Do they charge tho samc Of
! fence c0dcm nOmi,c, or even in Of
feet Are tho counts interchange-
able, not even in terms but merely
in effect And again could the
judgment rcnderedin tho first, cover
the guilt charged in tho seconl?
In the first, tho.treasurer was
charged with failing to report and
return moneys on the 18Th March
In the second he is charged with
the embezzlement of moneys on the
31st March.
The offences are not identical. It
appears that the first offence con-
tains no feature that dctines; thu,
second II would not have been
competent under tho first iudict.
mont to prove enlhezzlemcn4, for the
charge was not made. In the second
he is charged with larceny. III the
first no charge Of this crime is M ldc
In tho second indictment he is
charged with having cmbczzlcd a
greater amount than the first in
dictlnent charges him with with,
holding.
It has been held if one is charged
for an offence in which the testimony
necessary to convict would have con
victea under former indictment
then the second is barred. This
means, doubtless, that when mnte:'i
al evidence for second is also mate
rial evidence for the first. But the
material fncts Of this case are not
material 10 tho first. ~
1t is alleged that the first indict.
ment charged that defendant f.iled
to turn over moneys, and, on the
second Indictment, to show that ho
ombezzled money, would also show
TINT he failed to pay it over, aid
that therefore the second Indictment
!; barred. This is erroneous. [o
is charged with embezzling on 31st
March, but even had thc Offence
} been charged on 18th M,rch, the
plea would not hold.
Court citos c:lso of ono acquitted
for larceny Of goods, yet indicted fol
receiving stolen goods. Yet in order tt
: convict forrcceiving stolen goods il
is essential to show the goods were
stolen.
The court, after carefully consid
oring the terms of the 1st inlict
mont cannot perceive that identity
essential to make tho charges identi
. cal. 1t will not be contonded thu
if II. A. Smith had been acquitted 0
failing to report on 18th March h
could not have been indicted for en-