The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1882-02-08
OUR COURT.
Winding Up the Criminal Business by
Sending a Delegation to the Peni.
Tertiary.

ID. In the case of the State against Geo
Evans, Mr.. Cothran, attorney for de
$ fendamt, made a motion in arrest q
: Judgment upon the ground of fatal de
feet in the indictment. The charge
was burglary under the statule-th,
indictment charged that the gin house
which was broken into VAS "within
; The curtilage of the said dwelling
i house, Mr.. Colhran contendcd that,
as the offence was statutory and rs the
, statute defined the out-buildings in
l which burglary could he committed t.
t he within two hundred yards Of the
: dwelling house and appurtenant
thereto, the indictment was fatally de-
5 fcctivc in that it did not allege that the
gin house WAS within two hundred
! yards of the dwelling house and APP
I purtcnant thereto.
Judge Aldricll said that the points
taken had been very clearly stated by
: the counsel for the defence, but that
the indictment described with suili-
:, cient certainty the offence Charged
| and the motion must be refused.
, In making a motion for 4 e trial
: and in arrest of judgment in the case
Vi lllt iDlSllS 0SoilSl - Nt
' malicious treSpaSs in killing 4 dog.
| Mr.. Orville II. Calhoun offered
two grounds for an arrest OF judgment.
, First, that Il dog is not regarded Its
l property under the laws of this State,
or at least such property as will give
. occasion for the punishment of the
| criminal law, and second, that if it is
l regarded as such property, then it Is
necessary that the value of the proper
ty should be set forth in an indlct-
: mcnt for malicious treSrass. Under
the common law, Il dog is not regarded
of sufficient value to give occasion for
the punishment of the criminal law,
as will appear by reading the case of
) "the State against Edmund Wheeler,
in 18th Rich. page S62. That decision
spvs, the authorities which the Dis
trict Judge has cited arc weighty
enough to induce doubt in my mind,
for they clearly show that although
the common law recognizes a quail
fled property in q dog sufficient for q
civil suit, it considers all dogs, like
monkeys and parrots, of no intrinsic
value, priced only from wllim or for
sport, and therefore too inconsiderable
to give occasion for the punishment of
the criminal law. Now to show that
q dog is not regarded as property un-
der the laws of this State, and that he
is only taxed as a luxury. Every dog
is taxed alike. He is not valued ac-
cording to his market value Us other
personal property is. In fact, no value
is placed upon him at all, bet each
dor is taxed five dollars as u luxury.
No value has been placed upon the
dog in the indictment, and therefore
the State cannot contend that this dog
is property, for all property must have
some value, and that value must be set
forth in an indictment for malicious
trespass. The act under which this
indictment is brought says, "Whocver
shall wilfully. unlawfully and mali
ciously, cut, shoot, MAIN, wound or
destroy any horse, mule, neat cattle,
hog, sheep, goat, or other personal
property, the goods and chattels of an
other, shall be guilty of a miSdemean-
or, &c" a dog is not mentioned.
Suppose this indictment had been for
larceny, would your Honor hold that
it was unnecessary to set forth the
value of the dog in the Indictment?
| think not, and believe that your
Honor will hold that it was necessary
that the value of the dog should have
been set forth in an indictment for
malicious trespaSs.
In reply, his Honor said: Dogs are
property all over the world. This is a
case of malicious lrespass. The pris-
oncr when in the road as he was re-
turning from church. shot a hound
dog within the enclosure of its OWL
er's yard. The motions in arrest of
Judgment and for Il new trial are de-
MED.
In the case of the State against Sam
Hamilton indicted for larceny from the
field, Mr.. Bonham made q motion for
arrest of judgment, OH the ground that
the indictment alleges tina: the prop
erty stolen vas the property Of p. B.
Benson, when it was i'll proof that it
was the property of another that the
title and possession vas in Lousia
Miller, whereas the indictment alleges
that it is Improperly of ?. B. Benson,
1t was proven that p. Il. Ben
son had only Il statutory lien for rent
OH one-third. 1t was not the property
or in the possession of p. b. Benson,
but was the property of Louisa
Miller who was a tenant of Benson.
Mr.. Bonham further said that in case
his Honor refused the arrest of judg-
ment he would make q motion for q
new trial, as when he consented to go
into a trial Of the case he belived his
two material witnesses were within
the call of the court. He was not
aware of their absence until after
going into trial, when it was too late
to ask for 4 postponement or the case.
The Court replied, that it was the
business of the attorney to have his
witnesses bound over to court, and
that the court would not grant q new
trial because of their absence.
In the case of the State against
Ephraim Scott, charged with burglary
and grand larceny in stealing oats
from Major Griffin's barn, Mr.. Gray
don moved for q new trial because of
the insutiiciency Of proof to convict.
He said that he was aware that he
would be met with this objection !:
that the issues being matters of fact,
the jury are the sole judges of the
facts. Before our present Constitution
was adopted the Judge on the Bench
had the right to give the jury his opin-
ion of the facts, though tine jury had
the perfect right to disregard thatopin-
ion. Although that right had been
taken away from the Judge he con-
tended that the Judge had been COM
pensatcd for that deprivation in his
present right to grant a new trial. At
ter Major Griffin had discovered the
loss of his oats, he found at Ninety
Six, in the possession of q merchant, a
lot Of oats which he believed to be his.
These oats had been purchased from
the prisoner, and except the possess
sion of oats which Major Griffin be-
lieved to be like his there was no
idence to connect him with either the
theft or the burglary. All red oats In
Abbeville County sprang from the
same origin. Admitting that the pris-
oner did have Major Gritiin's oats, it is
a great stretch of authority to connect
him with the burglary, when it WAS
proved that the barn was found un-
locked several times. Motion for an
arrest of judgment was made because
of defective indictment. "Divefs
other times" is too indefinite. The
indictment should be specific, that
the accused may know the crime
whereof he stands charged.
After Mr.. Graydon sat down, Mr..
Benet said that he would he glad if
his Honor would withhold his opin-
ion until he also could be heard in a
similar argument in behalf of An
thony Martin and Tom Lyon, who
who had been convicted rs partici-
pants in the same demonstrating oats
from Major Griffin. He, like the
counsel who had just preceded him,
believed the indictments defective.
The Constitution declares that an in
dictment shall conclude in a particu-
lar way, and these indictments have
not comformed to this requirement.
He would make a motion for a new
trial III the case of Athony Martin and