Ex Parte State, No. 19928

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtLITTLEJOHN; J. McNary Spigner; MOSS, C.J., LEWIS and BUSSEY, JJ., and J. B. NESS
Citation263 S.C. 363,210 S.E.2d 600
PartiesEx parte the STATE of South Carolina, Appellant. In re Joseph Norman BRITTIAN, Child Under the Age of Seventeen Years, Respondent.
Decision Date12 December 1974
Docket NumberNo. 19928

Page 600

210 S.E.2d 600
263 S.C. 363
Ex parte the STATE of South Carolina, Appellant.
In re Joseph Norman BRITTIAN, Child Under the Age of
Seventeen Years, Respondent.
No. 19928.
Supreme Court of South Carolina.
Dec. 12, 1974.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Robert M. Ariail and Staff Atty. Wade S. Kolb, Jr., [263 S.C. 365] Columbia, for appellant.

Corley, Sandlin & Perry, Columbia, for respondent.

LITTLEJOHN, Justice:

Judge J. McNary Spigner, of the Family Court of Richland County, dismissed charges against Joseph N. Brittian. The State has appealed.

On February 12, 1974, two petitions were filed in the Family Court of Richland County against Brittian. He was charged with shoplifting and possession of marijuana. The hearing was scheduled for 3:30 p.m. on March 28.

On the day before the scheduled hearing the prosecutor, Jan Strifling, learned that an essential witness, a chemist from SLED, would be unable to attend. Mr. Strifling informed counsel for Brittian and Special Judge Herbert W. Louthian of the family court that the prosecution elected not to call the case for trial as scheduled.

Notwithstanding such notice, Brittian's counsel appeared at the time scheduled for the hearing and was ready to proceed. No one was present to prosecute and Brittian's counsel moved to dismiss the case. Judge Louthian overruled the motion and continued the case 'in the interest of justice and fairness to the prosecution.'

The hearing was rescheduled for April 5, at which time Judge Spigner was presiding over the same court. Present for the hearing were attorney Bundt Wilson for the prosecution, and Brittian's counsel. Brittian's counsel renewed the motion for a dismissal and the same was granted by Judge Spigner, who based his decision on § 15--1190 of the South Carolina Code (1962). That section reads as follows:

' § 15--1190. Hearing and adjournment thereof.--Upon the return of the summons or other process or after any child has been taken into custody and at the time set for the hearing the court shall proceed to hear and determine the case.

Page 601

The court from time to time may adjourn the hearing and inquire into the habits, surroundings, conditions and tendencies of the child so as to enable the court to render such order or judgment as shall conserve the welfare of the child and carry out the objects of this chapter. During such adjournments the child may be placed in the custody of a parent, guardian, relative or other fit person and under the supervision of a probation officer if the court so directs.'

It was the reasoning of Judge Spigner, and he so held in his order, that 'The brief of the defense brings to the Court's attention Section 15--1190 which is not in conflict with Chapter 6.1 of Title 15, South Carolina Code of Laws, 1962....

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8 practice notes
  • State v. Needs, No. 24856.
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 1998
    ...may, of course, request the dismissal of an indictment or charge. State v. Ridge, 269 S.C. 61, 236 S.E.2d 401 (1977); Ex Parte State, 263 S.C. 363, 210 S.E.2d 600 In this case, the evidence showed that Ms. Smith had concealed information and lied to investigators to protect appellant, facts......
  • State v. Williams, Opinion No. 5405
    • United States
    • Court of Appeals of South Carolina
    • May 25, 2016
    ...of the prosecutor....State v. Ridge , 269 S.C. 61, 65, 236 S.E.2d 401, 402 (1977) (alterations by court) (quoting In re Brittian , 263 S.C. 363, 366, 210 S.E.2d 600, 601 (1974) ). The magistrate erred in dismissing the case. The proper remedy for evidence obtained in violation of the Fourth......
  • State v. Ridge, No. 20455
    • United States
    • United States State Supreme Court of South Carolina
    • June 22, 1977
    ...to allow the solicitor to nol pros the indictment he attempted to. There remains the question of the second indictment. In In re Brittian, 263 S.C. 363, 366, 210 S.E.2d 600, 601 (1974), this Court quoted with approval 21 Am.Jur.2d Criminal Law, § 517 "A statute may authorize the court, eith......
  • Murphy v. Murphy, No. 20466
    • United States
    • United States State Supreme Court of South Carolina
    • July 13, 1977
    ...The actions taken by Judge Bates were without authority of law and of no effect. Ex Parte The State of South Carolina (In Re Brittian), 263 S.C. 363, 210 S.E.2d 600 REVERSED. LEWIS, C. J., and LITTLEJOHN, NESS and GREGORY, JJ., concur. ...
  • Request a trial to view additional results
8 cases
  • State v. Needs, No. 24856.
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 1998
    ...may, of course, request the dismissal of an indictment or charge. State v. Ridge, 269 S.C. 61, 236 S.E.2d 401 (1977); Ex Parte State, 263 S.C. 363, 210 S.E.2d 600 In this case, the evidence showed that Ms. Smith had concealed information and lied to investigators to protect appellant, facts......
  • State v. Williams, Opinion No. 5405
    • United States
    • Court of Appeals of South Carolina
    • May 25, 2016
    ...of the prosecutor....State v. Ridge , 269 S.C. 61, 65, 236 S.E.2d 401, 402 (1977) (alterations by court) (quoting In re Brittian , 263 S.C. 363, 366, 210 S.E.2d 600, 601 (1974) ). The magistrate erred in dismissing the case. The proper remedy for evidence obtained in violation of the Fourth......
  • State v. Ridge, No. 20455
    • United States
    • United States State Supreme Court of South Carolina
    • June 22, 1977
    ...to allow the solicitor to nol pros the indictment he attempted to. There remains the question of the second indictment. In In re Brittian, 263 S.C. 363, 366, 210 S.E.2d 600, 601 (1974), this Court quoted with approval 21 Am.Jur.2d Criminal Law, § 517 "A statute may authorize the court, eith......
  • Murphy v. Murphy, No. 20466
    • United States
    • United States State Supreme Court of South Carolina
    • July 13, 1977
    ...The actions taken by Judge Bates were without authority of law and of no effect. Ex Parte The State of South Carolina (In Re Brittian), 263 S.C. 363, 210 S.E.2d 600 REVERSED. LEWIS, C. J., and LITTLEJOHN, NESS and GREGORY, JJ., concur. ...
  • Request a trial to view additional results

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