
    The State against Adam Fowler Brisbane.
    Columbia,
    1802.
    Where time anil place are set forth in the caption of an indictment ■with sufficient certainty to a common intent, legal subtleties and niceties are to be disregarded.
    In all public prosecutions on the part of the state, where defendant or prisoner calls no witnesses, his counsel is entitled to the last word or the privilege of concluding theargument* to the jury, notwithstanding the former practice to the contrary.
    MOTION in arrest of judgment on a conviction at Camden, upon an indictment for an assault.
    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 contended, that the caption did not state that the court was 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 to be entered up on it. He laid it down as strict law, that if an act of parliament appoint a place for holding a court, every caption of an indictment ought to shew that the court was held at such identical place, and no where else ; otherwise, it is insufficient and faulty. Dyer, 135. 2 Hawkins, 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 j that it might clearly appear 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 ter-miner, &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 ambiguity 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 defendant stated, that be 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. EL 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 pr ictice, 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 practice 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 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 rale 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.
     