State v. Messervy, 19382
| Decision Date | 07 March 1972 |
| Docket Number | No. 19382,19382 |
| Citation | 187 S.E.2d 524,258 S.C. 110 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Appellant, v. Edward Behling MESSERVY, Respondent. |
Atty. Gen. Daniel R. McLeod, and Asst. Atty. Gen., Hubbard W. McDonald, Jr., Columbia, for appellant.
Gerald C. Smoak, Walterboro, for respondent.
Edward B. Messervy was charged by South Carolina Highway Patrolman D. W. Crosby with driving a vehicle while under the influence of intoxicating liquors. He was tried and convicted by a jury in a Charleston County Magistrate's Court. At the trial, Patrolman Crosby presented the State's case without the assistance of a prosecuting attorney. He testified as prosecuting witness and was allowed by the magistrate to make a closing argument to the jury.
Messervy appealed to the Charleston County Court on grounds, among others:
'That His Honor erred as a matter of law in permitting the attorney for the State of South Carolina to be Patrolman Crosby because Patrolman Crosby was also a witness for the state and his summing up of the state after testifying constituted reversible error in that the jury was likely to confuse what he testified to under oath with what he said by way of summation, which was not under oath, and no instruction regarding this was given by His Honor.'
The judge disposed of the appeal in a brief handwritten order:
'Remanded back for a new trial. Error in permitting prosecuting witness to argue for State during trial.
(s) Theodore D. Stoney.'
Apparently the county court judge granted the motion for a new trial because 'the jury was likely to confuse what he (the patrolman) testified to under oath with what he said by way of summation, which was not under oath, and no instruction regarding this was given by His Honor.' The record does not indicate that counsel for the defendant objected to any summation argument made, nor is there any contention that any improper argument was made to the jury. Accordingly, the lower court has held that the bare fact that the patrolman was permitted to testify and to summarize the case before the jury was error warranting a new trial. The State has appealed. We reverse. It has long been the practice in the magistrates' courts of this State for the arresting patrolman to prosecute the cases which he has made. The procedure has been followed under a ruling of the attorney general since 1958. See Annual Report of Attorney General for the State of South Carolina 1957--1958, page 268. Ideally, the State's case would be presented by a prosecuting attorney, but unfortunately such is not practicable because of the large number of traffic court violations. According to appellant's brief the highway patrol made 236,000 arrests during 1970.
We find no case in this state on point, and surprisingly little precedent in other jurisdictions. In the...
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People v. Jackson
...in South Carolina. In 1972 the Supreme Court of South Carolina permitted arresting officers to prosecute minor offenses (State v. Messervy, 258 S.C. 110, 187 S.E.2d 524). The court did not discuss the prohibition against practicing law without a license. In 1978 the Supreme Court of South C......
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In The Matter Of Richland County Magistrate's Court
...has previously permitted persons other than solicitors to prosecute criminal cases in magistrate's court. See, e.g., State v. Messervy, 258 S.C. 110, 187 S.E.2d 524 (1972); City of Easley v. Cartee, 309 S.C. 420, 424 S.E.2d 491 (1992). Though this Court sanctioned the practices of allowing ......
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Salley v. Myers
...court" because they are "acting in the capacity of public officials and are sworn to uphold the law"); State v. Messervy , 258 S.C. 110, 187 S.E.2d 524, 524–25 (1972) (holding that it was proper for the arresting patrolman to serve as both the sole prosecutor and witness in a criminal jury ......
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State v. Floyd
...number of traffic court violations. According to appellant's brief the highway patrol made 236, 000 arrests during 1970. Messervy, 258 S.C. at 113, 187 S.E.2d at 525 (internal citations omitted). The court recited from a Hampshire Supreme Court decision permitting police officers to prosecu......