Dukes v. State, 18542

• Decision Date: 28 July 1966
• Docket Number: No. 18542,18542
• Citation: 149 S.E.2d 598,248 S.C. 227
• Parties: George W. DUKES, Appellant, v. STATE of South Carolina et al., Respondents.
• Court: South Carolina Supreme Court

Page 598

149 S.E.2d 598

248 S.C. 227

George W. DUKES, Appellant, v. STATE of South Carolina et al., Respondents.

No. 18542.

Supreme Court of South Carolina.

July 28, 1966.

James W. Alford, Columbia, for appellant.

Daniel R. McLeod, Atty. Gen., Edward B. Latimer, Asst. Atty. Gen., Columbia, for respondents.

LIONEL K. LEGGE, Acting Associate Justice.

At the December, 1953 term of the Court of General Sessions for Charleston County, George W. Dukes and Sidney C. Owen pleaded guilty to an indictment charging that on October 17, 1953, the said Dukes and Owen 'in the common highway, to-wit: Number 533 Rutledge Avenue, Charleston, S.C., therein in and upon one C. D. Miller and E. C. Hesse in the peace of God and of the said State then and there being, feloniously and unlawfully did make an assault and there the said C. D. Miller and E. C. Hesse in bodily fear and danger of their life in the highway aforesaid, then and there feloniously did put and with a Pistol did then and there threaten and in fear of their life, then and there feloniously did put and good and lawful money of the United States of America and certain drugs and narcotics of the value of Sixty-five ($65.00) Dollars of the proper goods and chattels of Parks Pharmacy, Inc. from the person and against the will of the said C. D. Miller and E. C. Hesse in the highway aforesaid, then and there feloniously and violently did steal, take and carry away against the form of the Statute in such case made and provided, and against the peace and dignity of the same State aforesaid.' Thereupon they were each sentenced to imprisonment at hard labor for a period of twenty-five years.

On April 30, 1965, Dukes, then (and now) confined in the State Penitentiary, petitioned the Honorable John Grimball, Judge of the Fifth Judicial Circuit, for a writ of habeas corpus, contending that the indictment before mentioned had charged him with highway robbery; that the maximum sentence for that offense was ten years, which he had served, and that he was therefore entitled to immediate release.

Upon the hearing on the writ, Judge Grimball set the sentence aside and ordered the petitioner remanded to the Court of General Sessions for Charleston County for resentencing for either highway robbery or armed robbery, depending upon that court's interpretation of the indictment. Accordingly, appellant was on October 18, 1965, brought before the Honorable Clarence E. Singletary, presiding in that court, who, construing the indictment as charging armed robbery, resentenced him on that date to a term of twenty-five years, the sentence to begin as of December 15, 1953, the date of the original sentence. Thereafter appellant filed another petition for a writ of habeas corpus, which was denied without hearing by the Honorable James Hugh McFaddin, presiding in the Fifth Judicial Circuit, Judge McFaddin holding, by his order dated January 24, 1966, that its allegations were identical with those of the petition previously heard by Judge Grimball, and that the questions raised before Judge Grimball and Judge Singletary should be presented to this court by appeal from their orders.

This appeal is from Judge McFaddin's order of January 24, 1966, and Judge Singletary's order of October 18, 1965, upon the following exceptions:

'1. Because his Honor, Judge McFaddin, erred when he denied the petition, the error being that he should have held that the appellant had pled guilty to an indictment charging the offense of Highway Robbery and Larceny.

'2. Because his Honor, Judge Singletary, erred when he held that the appellant had pled guilty to an indictment charging the offense of Armed Robbery, the error being that he should have held that the appellant had pled guilty to an indictment...