Summary
holding that a fact included in an indictment is surplusage if it is not legally necessary to the charge
Summary of this case from Yoder v. CommonwealthOpinion
11734
April 1, 1925.
Before TOWNSEND, J., Hampton, Spring 1924. Reversed.
Wheeler Addison was convicted of housebreaking and larceny, and he appeals.
The appellant and a codefendant were jointly indicted for housebreaking and larceny. The codefendant pleaded guilty. The appellant pleaded not guilty, and complains on appeal of lower Court's refusal to direct a verdict on the ground that the evidence was not sufficient for submission of the case to the jury.
The codefendant testified that he broke into a certain store and restaurant; that he wrenched the lock off with a pair of clippers which were introduced in evidence and identified by him; that he took certain goods from the store; that he was alone at the time; and that appellant had not participated in the commission of the crime. He admitted having testified to the contrary at the preliminary hearing, but testified that such testimony so given at preliminary hearing was false and had been given as the result of threats made by constable who had arrested him, and pursuant to constable's advice to implicate appellant. The constable denied that he had so threatened or advised codefendant. A witness for the State testified that codefendant had told him that the clippers, which had been so used and identified by codefendant, were in appellant's room; that appellant told witness that he had thrown clippers in certain pond; and that witness found clippers in such pond. The appellant testified that he had not participated in the commission of the crime; that codefendant was living with him; that he had found clippers in room occupied by codefendant after he had heard of the crime and had thrown clippers in pond to avoid being charged therewith.
Messrs. T. Hagood Gooding and George Warren for appellant.
Mr. Randolph Murdaugh, Solicitor, for the State.
April 1, 1925. The opinion of the Court was delivered by
Upon consideration of the evidence in this case, a review of which would serve no useful purpose, the Court is convinced that it was not sufficient to justify a submission of the issue of the defendant's guilt to the jury, and that his motion for a directed verdict should have been granted.
The judgment of the Circuit Court is reversed.
MESSRS. JUSTICES WATTS, FRASER and MARION concur.
MR. CHIEF JUSTICE GARY did not participate.