July 6, 1908. The opinion of the Court was delivered by At the September term of the Court of General Sessions for Pickers county, 1906, the defendant was indicted under two counts, burglary and larceny.
At the trial of the defendant the solicitor announced that he would not ask a conviction on the first count for the alleged burglary, upon the ground that there was no testimony offered in support thereof; and thereupon the Court stated that it would direct a verdict of not guilty as to the first county.
The Judge, thereupon, charged the jury generally, and the jury returned a verdict of guilty on the second count. *Page 440 From the sentence on said verdict the defendant appealed to the Supreme Court. This Court granted a new trial. State v. Hamilton, 77 S.C. 383, 57 S.E., 1098.
At the fall term, 1907, of the Court of General Sessions for Pickers county the solicitor handed out a new indictment, which contains substantially the two counts contained in the first indictment.
Upon the defendant's arraignment he interposed the plea of former jeopardy, giving proof of the first indictment and the fact that the two indictments are one and the same, and that the defendant is the same person described in each indictment; that the felony and burglary in said former indictment and the felony and burglary in the second indictment are one and the same felony and burglary. Wherefore, he claims he has been placed in jeopardy under the charge contained in the first count in said indictment and that under Article I, section 17, of the Constitution of the State of South Carolina, he cannot again be placed in jeopardy on said charge. Wherefore, he prays that he may be dismissed for the charge of burglary contained in the said first count in the said first indictment.
There was no difference of view between the parties so far as the testimony in support of said plea of jeopardy is contained, but the same, after reflection and argument, was overruled by the Circuit Judge, and the trial proceeded under both first and second counts.
After the charge of his Honor, the jury returned a verdict of guilty, with recommendation to mercy; the Judge then sentenced the defendant to five years' imprisonment. From this sentence the defendant now appeals to this Court upon four grounds. Let the indictments and proceedings of the Circuit Court affecting the plea of jeopardy be reported.
We will now notice these exceptions. Nos. 1, 2 and 4 will be considered together, and are as follows:
1. "Because the Circuit Judge erred in overruling the defendant's plea of former jeopardy as to the first count in said indictment, made upon the ground that, having been *Page 441 placed upon trial upon the indentical charge contained in first count of said indictment, a jury having been empanelled for the trial of said charge, and said charge having been withdrawn from the consideration of the jury by the solicitor, he has been placed in jeopardy on said charge and could not be again tried thereon.
2. "Because the Circuit Judge erred in holding that the defendant had not been placed in jeopardy on the charge of burglary, contained in the first count of said indictment; whereas, he should have held: (a) that the statement of the solicitor that he would not ask for a verdict on that count, but would enter a nol. pros. on that count, was a withdrawal of that count from the consideration of the jury, and, further, was tantamount to a nol. pros. on that count; (b) that the statement of the Circuit Judge, made in his charge to the jury, was a withdrawal of the charge contained in said first count from their consideration.
4. "Because the Circuit Judge erred in refusing defendant's motion for a new trial and in arrest of judgment; whereas, he should have held that the defendant had been placed in jeopardy on the first count of said indictment and was entitled to his discharge as to the charge contained in said first count of said indictment."
As we have before remarked, it was upon motion of the defendant that a new trial was granted in this case, 77 S.C. 383,57 S.E., 1098.
Thus the defendant is responsible for all the consequences which will flow to him from the new trial. If he had remained quiet, unquestionable his plea of former jeopardy would have been sustained. The effect, however, of the order for a new trial has removed every vestige of his plea of former acquittal.
This Court has considered the effect of a new trial in a case where there was three counts in an indictment under which the jury found a verdict of guilty as to the first and third, and used the words, "We disagree as to the second count." The case referred to is State v. McGee, 55 S.C. 247, *Page 442 253, 33 S.E., 353. In this case the Circuit Judge held: "`A verdict finding the defendant guilty under the first and third counts would necessarily have presupposed one of two things, to wit: either that the jury had found him not guilty under the second count or that they had disagreed as to that counts, but were willing to render a verdict of guilty as to two counts, the practical effect of which, in law, would be to acquit him on the second count. When a verdict is entered which is not afterwards set aside at the instance of the defendant, and the jury discharged from the further consideration of the case, its effect is to acquit the defendant of all the counts in the indictment, although the jury may have found him guilty on a less number than the whole of the counts; otherwise he would be subject for the same offense to be put in jeopardy of life and liberty a second time. Jurors who are unwilling to acquit a defendant on any of the counts in an indictment should refuse to agree except upon a general verdict of guilty.' As the verdict in this case must be set aside, and in order that the Count may not be misunderstood, we take occasion to say that the defendant cannot claim an acquittal under the second count.State v. Commissioners, 3 Hill, 239."
The same principle of law underlies the decision of this Court in the case of State v. Gillis, 73 S.C. 318, 322,53 S.E., 487. Mr. Justice Jones, in delivering the opinion of the Court, says: "It is true this rule was applied to offenses not capital, but the constitutional provision applies equally to offenses involving liberty as well as to offenses involving life as a penalty. The defendant must be held to have made his application for a new trial in view of the rule of law above declared, and must be deemed to have understood as plainly as if a statute had so declared that a new trial meant a rehearing upon the whole indictment as if no trial had taken place thereon."
It seems to us, therefore, that the points raised by these three exceptions are decided against the appellant: and that it is unnecessary, in view of the decisions we have quoted *Page 443 from our own court, to linger longer in their consideration. These exceptions are overruled.
3. "Because the Circuit Judge erred in not holding that the finding by the jury of guilty on the second count of the indictment was an acquittal of the defendant on the separate and distinct charge contained in the first count of the indictment."
So far as the third exception is concerned, we told that the defendant by interposing his appeal in 77 S.C. 383,57 S.E., 1098, and having the same to obtain for him a new trial by the order of this Court, had precluded himself from having us to consider what is the true effect of the verdict of guilty on the second count of the indictment in the first instance. This exception must be overruled.
It is the judgment of this Court that the judgment of the Circuit Court be, and the same is, affirmed.