
    The State vs. James Huggins.
    
      Murder — Indictment.
    An indictment for murder charged that on the 19th of July, H. struck S. a mortal blow; that S. languished until the 1st of August, in the same year, when he died; that T. was present on the day and year first aforesaid, aiding and abetting; “ and so the jurors aforesaid, &e., do say that the said H. and T., the said S., in manner and form aforesaid, then and there, &c., did murder.” H. was found guilty : — Held, on motion in arrest of judgment, that the indictment was good ; that then and there applied properly to the consummation of the murder, and were not confined in their application to the day the blow was struck; that if their application was uncertain, they might be rejected as surplusage.
    BEFORE WHITNER, J., AT MARION, FALL TERM, 1859.
    The indictment charged, “ That James Huggins, late of the district of Horry, in the State of South Carolina, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the 19th day of July, in the year of our Lord one thousand eight hundred and fifty-nine, with force and arms, at Horry Court House, in the district and State aforesaid, in and upon one Enoch Stevens, in the peace of God and of the said State then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault; and that he, the said James Huggins, with a certain iron gun barrel, of the value of one dollar which he the said James Higgins in both his hands then and there had and held, the said Enoch Stevens, in and upon the right side of the head of him, the said Enoch Stevens, then and there feloniously, wilfully, and of his malice aforethought, did strike, giving unto him, the said Enoch Stevens, then and there, with the said gun-barrel, by the stroke aforesaid, in manner aforesaid, in and upon the right side of the head of him, the said Enoch Stevens, one mortal wound of the length of three inches, and of the depth of two inches; of which said mortal wound the said Enoch Stevens, from the said 19th day of July, in the year aforesaid, until the 1st day* of August in the year aforesaid, at Horry Court House aforesaid, in the district and State aforesaid, did languish, and languishing did live; on which 1st day of August, in the year aforesaid, the said Enoch Stevens, at Horry Court House aforesaid, in the district and State aforesaid, of the said mortal wound died. And the jurors aforesaid, upon their oaths aforesaid, do further present that Samuel Taylor, late of the district and State aforesaid, on the day and year first aforesaid, with force and arms, at Horry Court House, in the district and State aforesaid, feloniously, wilfully, and of his malice aforethought, was present, aiding, abetting, and assisting the said James Huggins, the felony and murder aforesaid to do and commit. And so the jurors aforesaid, upon their oaths aforesaid, do say that the said James Huggins and Samuel Taylor, the said Enoch Stevens in manner and form aforesaid, then and there feloniously, wilfully, and of their malice aforethought, did kill and murder against the peace and dignity of the same State aforesaid ”
    The defendant, Huggins, was found guilty. He appealed, and now moved this Court in arrest of judgment, on the grounds:
    1. Because the word “then” in the conclusion of the indictment, should naturally be referred to the last antecedent mention of time therein, which is the time, of the stroke; whereas there can be no murder until death ensue.
    2. Because, if the word “then” do not refer to the time of the stroke, it is at least indefinite to what time it does refer, and that, therefore, the indictment is bad for uncertainty.
    
      Alston, for appellant.
    The day of the violence and the day of the death may both be alleged. 4 Co. 42; 1 Chit. Or. L. 222; Hale, P. C. 188; 2 Hawk. P. C. Ch. 28, sect. 88; Slate vs. Fley & Rochelle, 2 Brev. 338; Jane vs. State, 3 Missou. 61, 45 ; 2 East, 66.
    Mclver, solicitor, contra,
    cited, Whart. Am. C. L. 165; 1 T. R. 322; 4 T. R. 767; Arch. Cr. PL 26; 1 Rich. 91; 1 Den. C. C. 89; 11 Mass. 93; 20-Pick. 356; 3 Sum. 12.
   The opinion of the Court was delivered by

O’Neall, C. J.

Notwithstanding the ingenious argument of the prisoner’s attorney, we are constrained to overrule his motion in arrest of judgment. The case (Walker's) from 4 Rep. 42, seems to have been the foundation of the exception now raised. Of that case, it is enough to say, that the record confined the murder to the day of the blow, to wit, the 4th of August, when the death, as set out was on the 19th. The exception was, therefore, well founded, that “then and there” applied to the wounding instead of the death, which made the indictment ill. But in this case there is no such application of the words “ then and there;” they apply to the murder before set out, in manner and form as before charged.

The case of the State vs. Fley and Rochelle, 2 Brev. 346, is full to this point. In that case, Grimke, J., delivering the judgment, said, “As to the exception ‘then and there,’the authorities cited in support of it clearty show, that in this case, they ought, to have no weight. If the indictment had gone further and said, ‘then and there,’ to wit, on the 13th of April, there might be some room to doubt upon the authority of 4 Co. 42. But it has been held, that an allegation of the day, prima facie somewhat uncertain, may be helped by the apparent sense of the whole; as, when it is alleged, as in the present case, that the principal on such a day made the assault, and gave the stroke, and that the party died on such a subsequent day; and that the aider was tunc and ibidem abettans the said principal, because the words tunc and ibidem abettans, from the manifest import of the whole, shall be referred to the time of the stroke by which the felony was done.”

If that be so in the case of an aider and abettor, much more must the rule hold in the case of the principal, where the words, “ then and there ” may be somewhat uncertain as to their application to the “ stroke or death.” The manifest import apply them to the consummation of the murder in the death of the party slain. But if there be any doubt as to the proper reference of the words uthen and there," in the conclusion of the indictment, they are perfectly immaterial, and may be struck out as surplusage. The indictment as it stands, reads, “And so the jurors aforesaid upon their oaths aforesaid, do say, that the said James Huggins and Samuel Taylor, the said Enoch Stevens, in manner and form aforesaid, then and there, feloniously, wilfully, and of their malice aforethought, did kill and murder, against the peace and dignity of the same State aforesaid.” Leave out the words “ then and ■there,” and the charge is just as perfect as it is with them.

They are in no wise material; and as is said in the State vs. Fley and Rochelle, 2 Brev. 346, “may be rejected as surplusage.”

The motion in arrest of judgment is dismissed.

Johnston and Wardlaw, JJ., concurred.

Motion dismissed. 
      
      
         2 Hawk. ch. 23, sect. 89.
     
      
      
         4 Rep. 42.
     