State v. Dawkins

Citations

• 32 S.C. 17
• 10 S.E. 772
• 1890 S.C. LEXIS 10

Syllabus

<p>1. It is necessary to a conviction for burglary, that it should be charged and proved that the offence was committed in the night time of some day, but it is not necessary to allege the precise day correctly, provided the day named was anterior to the finding of the bill of indictment.</p> <p>2. The trial judge having given to the jury correct principles of law applicable to the particular facts testified to' in a case of burglary, he did not err in declining to tell the jury in general terms what was the legal definition of this crime.</p> <p>3. If the jury find a prisoner guilty of burglary, “when there was an entire failure of proof that there was a breaking,” bis only remedy is a motion before the Circuit Judge for a new trial. In this case there was some testimony tending to show a breaking.</p> <p>4. A mere narrative of the facts testified to by witnesses is not a charge on the facts within the meaning of the constitutional inhibition.</p> <p>5. Defendants being charged in one count with burglary, and in another count with larceny, and being convicted of burglary, errors, if any, of the charge as to the oflence of larceny are immaterial, and therefore not a ground for new trial.</p> <p>6. After the verdict has been published and the jury have separated, it is error to reassemble them, even though the purpose be to benefit the prisoner by suggesting the right to recommend to mercy, and thereby, under the statute, reduce the punishment. And a second verdict with such a recommendation is a nullity.</p> <p>7. Assuming that the sentence was based upon the second verdict and not upon the first, the judgment must be reversed and a new trial granted.</p>