<p>before Withers, j., at abbeyille, spring term, 1856.</p> <p>The defendant was indicted under tbe 16th Section of the ■Act of 1839. The following is a copy of the indictment:</p> <p>“ The State of South Carolina, Abbeville District. — To wit:</p> <p>“At a Court of General Sessions begun and holden, in and for the District of Abbeville, in the State of South Carolina, at Abbeville Court House, in.the District and State aforesaid, on the first Monday in October, in the year of our Lord one thousand eight hundred and fifty-five, the jurors of and for the District of Abbeville aforesaid, in the State of South Carolina aforesaid, that is to say:</p> <p>“ Upon their oaths present, That Thomas W- Pace, late of the District of Abbeville and State of South Carolina aforesaid, on the twenty-seventh day of March, in the year of our Lord one thousand eight hundred and fifty-five, with force and arms, at Abbeville Court House, in the District and State aforesaid, a certain will and testamentary instrument, of one Sarah Pace, (who had then recently departed this life,) then and there being found, unlawfully and for a fraudulent purpose did then and there forcibly possess himself of; and afterwards, to wit, on the day and year aforesaid, at Abbeville Court House in the District and State aforesaid, the said Thomas W. Pace, the said will and testamentary instrument of the said Sarah Pace, deceased, unlawfully and wilfully did neglect to produce, to be proved by the Ordinary of the District of Abbeville in the State aforesaid, in whose office the said will and testamentary instrument ought to have been proved, contrary to the Act of the General Assembly in such case made and provided, to the evil example of all others in like case offending, and against the peace and dignity of the same State aforesaid.</p> <p>“ And the jurors aforesaid upon their oaths aforesaid, do further present: That Thomas W. Pace, late of the District and State aforesaid, on the twenty-seventh day of March, in the year of pur Lord one thousand eight hundred and fifty-five, being in possession of the will of one Sarah Pace, (then recently deceased,) unlawfully and wilfully did neglect to produce the same to be proved, before the Ordinary of the District of Abbeville in the State aforesaid, in whose office the said will ought to be proved, contrary to the Act of the General Assembly in such case made and provided, to the evil example of all others in like case offending, and against the peace and dignity of the same State aforesaid.</p> <p>“And"the jurors aforesaid, upon their oaths aforesaid, do further present: That Thomas W. Pace, late of the District and State aforesaid, on the twenty-seventh day of March, in the year of our Lord one thousand eight hundred and fifty-five, with force and arms at Abbeville Court House, in the District and State aforesaid, having fraudulently possessed himself of the will of one Sarah Pace, (then recently deceased,) did then and there unlawfully and wilfully neglect to produce the same to be proved, before the Ordinary of the District of Abbeville, in the State aforesaid, in whose office the said wdll ought to be proved, according to law; whereupon the said Ordinary, then and there, issued his proper process, against him, the said Thomas W. Pace, to compel the production, for probate, of the said will of the said Sarah Pace, deceased; but notwithstanding the said process, so issued by the Ordinary of the District aforesaid, for the purpose aforesaid, he the said Thomas W. Pace has thence hitherto unlawfully and wilfully neglected and refused, and still continues to neglect and refuse, to produce the said will of the said Sarah Pace, deceased, before the Ordinary of the District of Abbeville aforesaid, in the State of South Carolina aforesaid, in whose office such will ought to be proved, for probate according to law; contrary to the Act of the General Assembly, in such case made and provided, to the evil example of all others in like case offending, and against the peace and dignity of the same State aforesaid.”</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ The defendant was indicted under the 16th Section of the Act of 1839, which is in the following words: ‘ If any person, having in possession the will of a deceased person, shall neglect to produce1 the same to be proved, the Ordinary in whose office such will ought to be proved shall have power to issue against him process, as for a contempt, and to imprison him until the will be delivered up ; and upon his continued refusal, he shall be liable to indictment, and upon conviction shall be punished as for a high misdemeanor.’</p> <p>“ On the 16th of May, (the year I think was 1855,) the Ordinary, moved thereunto by some one, issued a paper and had it served on the defendant, reciting the belief of the Ordinary that he had the last will and testament of his mother^ Sarah Pace, in possession, and requiring him to show cause, on the 23d May ensuing, why he should not be dealt with according to the law above cited. Defendant disregarded this, on the ground that he should first have been required to produce the will. Whereupon, on the 24th May, another citation, fixing the 26th, was served upon him, of the general tenor, I think, of the first; to this he made return, on oath and in writing, that he had not then, nor had he since the proceedings by the Ordinary began, the said will in possession, (and I think power and control were added.) He did not extend his denial beyond the inception of proceedings by the Ordinary. The Ordinary rested, did not imprison him, and the will never has been produced. Objection was taken: 1st, That the process of the Ordinary was not regular. Í held, that whether or not, defendant had answered, and waived his objection, on that score, though at first he had urged this objection in the Ordinary’s Court.</p> <p>“ Objection 2d, That indictment would not lie until the Ordinary had exhausted his power, that is, had imprisoned until the will was produced. I held otherwise; to wit, thus: The Ordinary must require the production of the will; it must be in the party’s power, control or possession, when required to produce it; if he had destroyed it before citation, the Act did not apply; it contemplated a person ‘ having in possession the will of a deceased person ;’ but if hé had the will in possession, power or control, when its production was demanded, he could not defend by showing that he had wilfully, fraudulently, disposed of it — put it beyond his reach — since he was cited to produce it; that the Ordinary was empowered, not absolutely required, to imprison, as for a contempt, and until the will be produced; that, in this case, if the party had the will or the power to produce when cited, the party had ‘ continued ’ his 1 refusal’ to produce the will, after he had 4neglected’in the outset to produce it; that the neglect consisted in not producing it voluntarily, and the ‘refusal’ after the citation, and the ‘continued refusal’ had occurred by the lapse of time from the 26th May, 1855, to the October Term of the same year.</p> <p>“ If this be not the true construction of the law, it appeared to me that we should have an awkward course of events; for example, in this very case, the Ordinary must have imprisoned the defendant, as for a contempt, until the will be produced, though he denied on oath he had it, or could produce it, at the time, or when he was cited, (and the same would be the case if he had denied he ever had had it,) and when he had been imprisoned until the will was produced, then, and then only, he would be liable, to indictment. So that a party must have suffered the extremity, to wit, imprisonment for contempt, and the will must have been produced, and, therefore, all the purposes of the law answered, before he could be indicted; or if he could be indicted while in durance vile by the sentence of the Ordinary, which durance was indefinite, we should have the anti-climax, instead, of a progression of penalty, for pertinacious guilt, of sentence in the G-eneral Sessions of imprisonment for a fixed term, upon one who was already in jail for an indefinite term. It is true a fine might be added. All this severe administration by the Ordinary must precede the resolution of the main question — contested, denied by the accused — the question of interest to legatees and devisees, whose rights are the end of the law, by a jury of peers. If the party denies possession of the will, how is the Ordinary to decide, according to the course of the common law ? He has no jury. If he had imprisoned this defendant, should we not have heard of a .habeas corpus? and the great right of trial by jury? Where a party does not deny that he is accountable for a will, I can see a fair field before the Ordinary — there he may and ought to exhaust his power.</p> <p>“ There was much evidence on the question of fact. One witness a youth of nineteen, said he saw the defendant take a trunk out of the closet, at night, after the burial of his mother’s body, late the same evening — that trunk, two witnesses said, was seen next morning in the garden, broken open. That same night, before the abstraction of the trunk, as above stated, a paper was taken from the same trunk, read by a neighbor, Kellar, to defendant and others, purporting to be the will of Sarah Pace, in which nothing was given to defendant. I do not recount the testimony; it was submitted to the jury, with no complaint or cause of complaint, by defendant, except he objects to my remark, on the presumption, fairly allowable, that defendant retained possession of the will, or power and control over it, if he ever had it, and failed before the Ordinary or here to account for its disposition. I did tell the jury that such an inference from such premises would not be illegal, arbitrary or unfair, in my opinion — taking care not to make defendant liable for any accident.</p> <p>“As to the motion in arrest of judgment, I say nothing. That will rest on the indictment.”</p> <p>The defendant appealed, and now moved this Court, in arrest of judgment, and for a new trial, on the following grounds:—</p> <p>In arrest of judgment —</p> <p>1. Because, under the 16th Section of the Act of ’39, the indictment as framed, cannot be sustained, as there is no allegation in any count of the indictment that the Ordinary did issue against the defendant the regular and proper process, as for a contempt, and did proceed to imprison him to compel the production of the paper.</p> <p>2. That, under tbe Act of ’39, tbe party is not indictable in tbe Court of Sessions until the Ordinary has exhaust¿d all the power vested in him by the Act to compel the production of the paper, and it should have been so alleged and proved.</p> <p>3. Because in the indictment there are three counts; the two first merely charge that defendant, having in possession the will of Sarah Pace, deceased, neglected to produce the same to be proved in the Court of Ordinary. The verdict is, guilty generally; neither of these two counts contain charges that constitute any offence under the Act of ’39; neither of them will support the verdict of the jury or warrant the judgment of the Court, and it is respectfully submitted, that upon this verdict of guilty generally, no judgment can be pronounced.</p> <p>Failing in the motion in arrest of judgment, then he moved for a new trial, on the above grounds, and also on the following:</p> <p>1. Because his Honor charged that it was not necessary that the paper in controversy should he proved to be the will of the deceased, or shown to have the legal requisites of a will, but it was enough if it purported to be a will.</p> <p>2. That there was not a tittle of evidence to show that the paper in question had any of the legal requisites of a will of deceased.</p> <p>3. Because his Honor charged that the jury, being satisfied that the paper had been in possession of defendant, might well presume that he still had it at the time he was required by the Ordinary to produce it, because he failed to show or explain how it went out of his possession or control.</p> <p>4. Because the presiding Judge charged that the offence was complete if defendant had the paper at the time the Ordinary required him to produce it, and that no further process by the Ordinary to compel the production of the paper was necessary, in order to subject defendant to indictment in the Court of Sessions. *</p> <p>5. That defendant never was required by the Ordinary to produce the paper at all, but merely to show cause why he should not be attached for a contempt in neglecting to produce it.</p> <p>6. Because the Judge charged that, to constitute the offence under the Act, the jury need not be convinced that defendant still had the paper, or that he had it in his'possession or control at the time the prosecution was commenced, or the indictment preferred.</p> <p>7. Because his Honor charged that the regularity of process by the Ordinary was immaterial — that he need not proceed regularly to issue process against defendant, as for a contempt, and need not imprison him. That to subject the defendant to indictment under the Act, the Ordinary need- not exert all the powers vested in him to compel the production of the paper.</p> <p>8. Because his Honor charged that the return of defendant to the process of the Ordinary, “ that he had not then the paper, and had not had it in his possession or control since required by the Ordinary to produce it,” should have no weight with the jury — that if defendant had purloined the paper, he would swear falsely in his return.</p> <p>9. Because the finding of the jury is contrary to’ law, and without evidence to support it.</p> <p>cited 1 .Kent, 467, note d; 1 Vera. 152; 6 Salk. 690.. Before defendant can be.indicted there must be continued refusal. • Here there.was no refusal at all— certainly no continued refusal. The two first counts are bad. No judgment, therefore, can be pronounced, for the Court cannot know on which count the verdict was rendered. State vs. Anderson, 1 Strob. 459; State vs. Posey, 7 Rich. 491.</p> <p>cited 1 Wms. Ex’ors, 185.</p>
