it was both reasonable and just, that they should be bound by their decisions, and that these should not lightly be set aside. Rule for reversing the decision of the circuit court dismissed. All the Judges present. Sumpter V. Murrell. THE STATE against ADAM FOWLER Brisbane. MOTION in arrest of judgment on a conviction at Camden, upon an indictment for an assault. Columbia, 1802. Where time and place are set forth in the caption of an indictment with sufficient certainty to a common intent, legal subtleties and niceties are to be disregard ed. In all public state, where defen dant or pri Mr. Falconer, in support of the motion, stated that the ground upon which he meant to rely, was an error in the caption of the indictment, as it did not state that the court was held at Kershaw court-house, agreeably to the directions of the act of the legislature, creating a district court in the former county of Kershaw. And, therefore, he prosecutions on the part of contended, that the caption did not state that the court was the held in the place appointed by law, but in some other place not designated by the act for that purpose; and, consequently, that the conviction was irregular, so that no judgment ought titled to the to be entered up on it. He laid it down as strict law, that last word or the privilege if an act of parliament appoint a place for holding a court, of concluding thearguments every caption of an indictment ought to shew that the court to the jury, was held at such identical place, and no where else; other- ing the forwise, it is insufficient and faulty. Dyer, 135. 2 Haw- mer practice kins, 255. The Solicitor, in reply, observed, that the principal object of every caption to an indictment, was to shew the time and place where the court is held; that it might clearly ap soner calls no witnesses, his counsel is en notwithstand to the con trary. The State V. Brisbane. pear that the court was held at the time mentioned and prescribed by law, and that the place was within the jurisdiction of the court. If this be done with sufficient certainty, it is all that the law requires. That the time and place were sufficiently set forth in the present indictment, would evidently appear on a bare perusal of it; there was no objection taken, he said, to the time, only to the place. The indictment, he said, was in the usual and common form, and headed in the accustomed style, "State of South "Carolina." " Kershaw district." It then proceeds to state, that a court of general sessions of the peace, oyer and terminer, &c. was held at the court-house of the said district, &c. This, he contended, was so descriptive of the place where the court was held, that the mind of man could not possibly be mistaken in it, or suppose it was held in any other place than in Kershaw court-house. There is no am biguity or uncertainty in it; it is as descriptive of the place as language can possibly make it. As to the nicety and exactness laid down in some of the old antiquated English reporters, it was a disgrace to the law at this enlightened period, and has justly brought down a reproach upon it. A sufficient degree of certainty to shew the time and place is all that the law requires, and that is well laid in the caption of the indictment under consideration. The Judges held, that the objection taken on the present occasion was a frivolous one, and unsupported by law or common sense. Time and place were as well set forth in the indictment under consideration as they possibly could be, and in language more appropriate and law-like than the act itself. Rule for arresting the judgment was dismissed. There was, however, another ground taken which did not relate to the merits of this case, and is only worthy of notice as it tends to settle a point of practice for the regulation of the bar in future: it was this. The counsel for the defend ant stated, that he had called no witnesses on the trial at Camden, and therefore claimed the privilege of concluding the arguments to the jury which had been refused him. He said, he had claimed this as a right on behalf of his client, not so much on account of any great benefit he was to derive from it in this case, as to have the point settled as a rule hereafter. He admitted, that it had been formerly the practice, to allow the Attorney-General, and Solicitors, in all public prosecutions on the part of the state, the privilege of opening and concluding the arguments in every case addressed to the jury. This, he said, was a partiality shewn to the public officers of the state, which in justice they were not entitled to. It was a relict of the kingly prerogative, which he hoped to see abolished in this country, and a prac tice more agreeable to the rights of freemen introduced. The state, he observed, was a body politic, formed by universal consent for the protection and defence of the rights of the citizen. These rights, he said, were of primary consideration, and should be put upon the same footing with those of the body politic, so as to make them perfectly reciprocal. In civil cases they were so, for it was a rule in the court of common pleas, in all cases where a defendant calls no witnesses, that he should be entitled to the last word, or the privilege of last addressing the jury; and the same rule ought to prevail in a criminal court; indeed, he thought it much stronger in a criminal case, inasmuch as a man's life and liberty were much dearer to him than property. The Solicitor did not appear to be very solicitous about this point, as he conceived the ends of justice in no wise concerned in it. He had found the practice as had been stated by his opponent, when he came into office, and as far as he was concerned, he was perfectly willing to submit it to the court, to make any rule upon the subject which might be most convenient or consonant with justice. The Judges, after consultation on this last point, observed, that they considered the rights of the citizen upon a perfect The State V. Brisbane. V. Brisbane. The State equality with those of the state, and they saw no good reason, why the latter should have any exclusive advantage or privilege in which the former should not equally participate. No good reason could be assigned, why a body politic should have higher rights than those who were protected by it. It was created by the people for the benefit of the people, and each individual ought to have every advantage which the aggregate had, otherwise there would not be a perfect reciprocity between the state and the citizen. They were therefore of opinion, that in future, the same rule ought to prevail in the criminal courts of judicature, which had been laid down in the court of common pleas. That in all cases where a defendant called no witnesses, he should have the privilege of concluding to the jury.* All the Judges present. This rule has been invariably observed in all the criminal courts throughout the state, as well as in the courts of common pleas ever since the above determination; so that it may now be considered as a standing rule of practice in our criminal courts of judicature. Columbia, 1802. Where there MOUNCE against INGRAHAM. TRESPASS to try title to land in Lancaster district. have been Verdict for defendant. Motion for new trial. contending claimants for ી grant of This was an action of trespass to try title to land. There vacant land, were two grants for the same tract of land, and the question and the mer its have been was, which of them should have the preference. heard and de termined by the court of Mr. Blanding, for the plaintiff, who held the junior caveats, a court of com Court of com grant, in support of this motion, stated, that there was a never suffer those merits to be again opened, or any evidence offered about the priority of right previous to the date of the grant. mistake in the dates of the grants; that the grant to his client was at first filled up in 1785, and afterwards altered to the 1st of June, 1786, which was a mistake or fraud practised on the plaintiff. That in the mean time, between the first date of the plaintiff's grant and the 1st of June, 1786, the day of the alteration, the defendant had obtained a grant, which was dated before the 1st of June, 1786, by which means he had obtained a priority in point of time. This, he contended, was either a gross mistake, which ought to be corrected by a verdict of a jury, or a palpable fraud committed upon him, which was equally within the province of a jury. That although mistakes and frauds were originally branches of the jurisdiction of the courts of chancery, yet our courts had liberalized the doctrine of late, so far, as to suffer them to go to a jury, where they could be traced out, or made to appear in a court of common law as well as in a court of equity. He therefore prayed, that this case might be sent back to a jury, in order that the fraudulent circumstances of the case might be more fully investigated. For defendant, it was insisted, that this was neither a mistake or fraud committed upon the plaintiff, but the result of deliberate justice done to the parties, by a court of competent jurisdiction. It was admitted, that there was an alteration in the plaintiff's grant, but the justice of the case rendered it necessary, that such alteration should be made. The plaintiff had included in his survey a part of defendant's land, and the matter had been submitted to the court of caveats before either of the grants passed, where the case had been depending till the 1st of June, 1786, when the governor and council who then formed the court, decided in favour of the defendant, and gave him the priority. That in consequence of this decision, a note or memorandum was made by the secretary of state, assigning this dispute about the lines as the reason why the plaintiff's grant had been so long delayed, and that it had not been finally determined till that day; consequently, the defendant's grant by that means gained the priority, as in the mean time his Mounce V. Ingraham. |