Copeland v. Manning, 17544

• Citation: 109 S.E.2d 361,234 S.C. 510
• Decision Date: 10 June 1959
• Docket Number: No. 17544,17544
• Court: South Carolina Supreme Court
• Parties: Frank COPELAND, Appellant, v. W. M. MANNING, Warden, et al., Respondents.

Page 361

109 S.E.2d 361

234 S.C. 510

Frank COPELAND, Appellant, v. W. M. MANNING, Warden, et al., Respondents.

No. 17544.

Supreme Court of South Carolina.

June 10, 1959.

Frank Copeland, pro. per.

James S. Verner, Asst. Atty. Gen., William T. Jones, Sol., Greenwood, for respondent.

OXNER, Justice.

This is an appeal from an order of Judge Griffith denying a petition by appellant for a writ of habeas corpus.

At the February, 1954, term of the Court of General Sessions of Laurens County, appellant and one James Dean were jointly indicted in separate counts for (1) breaking and entering a store with intent to commit larceny, and (2) grand larceny. At the same term of court appellant alone was indicted, in separate counts in the same indictment, for (1) breaking and entering another store with intent to commit larceny, and (2) grand larceny. The offenses charged in the first indictment were committed on December 15, 1953 and those named in the second indictment two days later. Both Dean and appellant pleaded guilty. On the first indictment appellant was sentenced by Judge Lewis, the presiding Judge, to imprisonment for a term of 12 years and his codefendant Dean for a term of 5 years. On the second indictment appellant was sentenced to imprisonment by Judge Lewis for a term of 12 years, to run concurrently with that imposed on the first indictment. Appellant forthwith entered upon the service of the foregoing sentences. In 1957 he escaped but was recaptured.

In May, 1958, appellant filed with Judge Griffith a petition for a writ of habeas corpus and sought to be discharged upon the grounds (1) that the two charges in each indictment under which he was sentenced in fact constituted only one offense and that the sentence imposed was in excess of that permitted by law, and (2) that even if each indictment be regarded as charging two separate offenses, it was error to impose a sentence in gross exceeding that which could have been validly given upon any one count. In an order filed on May 17, 1958, Judge Griffith, after pointing out that appellant could have been given a sentence up to 15 years on each indictment--5 years on the first count and 10 years on the second count, said he thought Judge Lewis 'intended to impose a sentence of 12 years, part of which would be on the housebreaking charge and part on the grand larceny charge, without specifying what portion he intended should apply to these offenses.' He then stated that out of an abundance of caution he 'was going to hold, as the petitioner claims, that the sentences on these indictments are void and that the defendant will have to be resentenced.' Accordingly, he declared the sentences imposed by Judge Lewis void and directed that appellant be transferred to the Laurens County jail to be resentenced during the June, 1958, term of court.

Pursuant to the terms of the foregoing order, appellant was brought before Judge Griffith, the presiding Judge, at the June, 1958, term of the Court of General Sessions for Laurens County, and resentenced. Judge Griffith imposed a sentence of six years on each indictment, to run consecutively, and directed that appellant be given credit for the time served under the sentences which had been declared a void.

At the September, 1958, term of the Court of General Sessions for Laurens County, appellant pleaded guilty to an indictment charging him with escaping from custody in 1957. Judge Bussey, the presiding Judge, imposed a sentence of 15 months to commence after the service of the two 6 year sentences imposed by Judge Griffith.

In November, 1958, appellant filed a second petition for a writ of habeas corpus in which he attacked the validity of the sentences imposed by Judge Griffith upon substantially the same grounds as those used in the attack upon the validity of the sentences by Judge Lewis. He further claimed in this petition that the sentence for escape imposed by Judge Bussey was also void because he was being illegally detained at the time of the alleged escape. Judge Griffith held in an order filed on January 26, 1959, that the sentences which had been imposed by him were valid and that it was premature to consider the validity of the sentence imposed by Judge Bussey as appellant had not yet entered upon the service of that sentence.

Appearing pro se, appellant has appealed from the last mentioned order by Judge Griffith. There has been no appeal from any of the prior orders, nor from any of the sentences imposed. While some of the exceptions do not comply with the rules of this Court, making it difficult to determine the exact points sought to be raised, we shall pass upon all questions mentioned in argument, whether properly raised or not.

There is no merit in appellant's claim that each indictment, while containing two counts, in reality charged only one crime. The first count charged him with breaking and entering a store with intent to steal. This is a statutory offense, Section 16-332 of the 1952 Code, punishable by imprisonment for a term not exceeding five years. It is a crime against possession. The second count charged grand larceny--a common law offense for which a sentence up to 10 years may be imposed. The two are distinct offenses for which separate sentences may be imposed. Macomber v. Hudspeth, 10 Cir., 115 F.2d 114; Robinson v. Commonwealth, 190 Va. 134, 56 S.E.2d 367; 9 Am.Jur., Burglary, Section 83. The indictments here were in accord with the established practice in this State. State v. Miller, 225 S.C. 21, 80 S.E.2d 354; State v. Teal, 225 S.C. 472, 82 S.E.2d 787.

Having concluded that appellant was subject to punishment for both offenses, we now turn to the sentence of 12 years on each indictment imposed by Judge Lewis. Neither of these sentences was void. Each was well within the maximum period of 15 years for which appellant might have been sentenced on each indictment, if the sentence had been on the separate counts. The error, if any, was not jurisdictional and manifestly went to form and not to substance. Ex Parte Klugh, 132 S.C. 199, 128 S.E. 882, 887. In the Klugh case the defendant was found guilty on...