Klugh v. Klugh, (No. 11805.)

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtMARION
Citation128 S.E. 882
PartiesEx parte KLUGH. STATE. v. KLUGH.
Decision Date15 July 1925
Docket Number(No. 11805.)

128 S.E. 882

Ex parte KLUGH.
STATE.
v.
KLUGH.

(No. 11805.)

Supreme Court of South Carolina.

July 15, 1925.


[128 S.E. 883]

Habeas corpus proceeding by J. D. Klugh to secure release from confinement in state penitentiary. Application for discbarge denied.

Jones & Harrison, of Greenwood, for petitioner.

MARION, J. The petitioner, J. D. Klugh, invokes the remedy of habeas corpus to secure his release from what he alleges to be unlawful confinement in the state penitentiary.

On November 12, 1923, the petitioner was convicted, in the county court of Greenwood county, of a violation of the prohibition law under an indictment which set forth the offenses charged in the following three counts:

"(1) And the jurors of the county and state aforesaid, upon their oath, do present that J. D. Klugh on the 7th day of October, in the year 1923, near Greenwood, in the county and state aforesaid, did willfully and unlawfully receive and accept for unlawful use, and did store and keep in his possession for unlawful use, certain spirituous, malt, vinous, fermented, brewed, and other liquors, to wit, whisky which contained alcohol, and are used as a beverage, against the form of the statute in such cases made and provided, and against the peace and dignity of the state.

"(2) And the jurors aforesaid, upon their oath aforesaid, do further present that the said J. D. Klugh, near Greenwood, in the county of Greenwood and state aforesaid, on the 7th day of October in the year of our Lord one thousand nine hundred and twenty-three, did willfully and unlawfully transport and convey from a point without this state, or from place to place within this state, more than one quart of alcoholic liquors or beverages, which contain more than 1 per cent. of alcohol, for the purpose of delivery, against the form of the statute in such case made and provided, and against the peace and dignity of the state.

"(3) And the jurors aforesaid, upon their oath aforesaid, do further present that J. D. Klugh, near Greenwood, in the county of Greenwood in the state aforesaid, on the 7th day of October in the year of our Lord one thousand nine hundred and twenty-three, did willfully and unlawfully store and keep in the bushes and woods near house alcoholic liquors and beverages containing more than 1 per cent. of alcohol, against the form of the statute in such case made and provided, and against the peace and dignity of the state."

The jury found the following verdict: "Guilty on all three counts." Thereupon the presiding judge, Hon. H. C. Tillman, imposed the following sentence:

"The sentence of the court is that you the defendant, J. D. Klugh, be confined at hard labor upon the public works of Greenwood county or in the state penitentiary for a period of three years."

On November 14, 1923, Judge Tillman, as the presiding judge of the county court of Greenwood county, by a formal order, finding and adjudging that the said J. D. Klugh had violated the condition of a suspended sentence to serve for a period of one year at hard labor on the public works of Greenwood county, or in the state penitentiary for a like period, which had been imposed, at its March, 192i, term, by the said county court, for a violation of the prohibition law, revoked the order suspending that sentence and ordered that the defendant, Klugh, be required "to serve the time specified, " etc.

The petitioner alleges that he was not present at the trial which resulted in his conviction and sentence by Judge Tillman on November 12, 1923; that, subsequently to the date of the trial, he was apprehended and, on February 16, 1924, conveyed to the state penitentiary, where he is now, and has ever since been, confined; that the indictment under which he was tried charged "a violation only of section 860, vol. 2, Code 1922, the punishment for which as fixed by section 877 of said volume is one year only"; that "so much of the sentence above set forth as exceeds one year is null and void"; and that, having served for a period in excess of one year, "he is entitled to be liberated by the authorities of said penitentiary."

The section (860, vol. 2, Code 1922) to

[128 S.E. 884]

which petitioner says his conviction of November 12, 1923, must be referred, is as follows:

"It shall be unlawful for any person, firm, corporation or company to receive, store, keep or have in possession, or to ship, transport or convey any alcoholic liquors from any point without the state into this state, or from one point to another in this state, or to deliver the same to any person, firm, corporation or company within this state, except as hereinafter provided."

The section (877) which, as he contends, controls the sentence, is as follows:

"Any violation of the provisions of sections (860) to (885), for which no other punishment is provided, shall be punished by imprisonment for not more than one year, or a fine of not more than one thousand dollars, or both."

It will be observed that the foregoing section (877), limiting the sentence to "not more than one year, " is by its express terms applicable only to "any violation of the provisions of sections (860) to (885), for which no other punishment is provided."

The return of the superintendent of the penitentiary, submitted by the Attorney General of the state, alleges that the petitioner was admitted to the penitentiary under the two sentences above mentioned, viz., the sentence of three years imposed by Judge Tillman on November 12, 1923, and the prior sentence of the same court for one year, the suspension of which was revoked by Judge Tillman on November 14, 1923, and makes the following contentions: (1) That the petitioner was convicted of the "illegal transportation" of alcoholic liquors for which other punishment than that prescribed by section 877 is provided by-section 872, which expressly provides that, for a violation thereof, the same punishment shall be imposed as for a conviction "of the illegal sale of such alcoholic liquors, " that is, the punishment prescribed by section 838, which for an unlawful sale permits of a maximum sentence of two years for the first offense and a maximum of five years for a subsequent offense; (2) and that the three-year sentence imposed by Judge Tillman was for a second offense, which, under the provisions of section 838, might have been for "as much as five years' imprisonment."

From the foregoing outline of the state's contentions it is apparent that the whole case for the respondent is rested by the Attorney General upon the proposition that the petitioner was tried for and convicted of the "illegal transportation" of alcoholic liquors denounced by section 872. That section reads as follows:

"Punishment for Illegal Transportation.Whoever shall knowingly transport or convey from one place to another, or from one person to another, any alcoholic liquors known by him to have been illegally sold or procured shall re ceive the same punishment as if convicted of the illegal sale of such alcoholic liquors. Charges of illegal transportation thereof may be joined in the same indictment."

But section 860, which is above set out, also denounces the transportation of alcoholic liquors, and, by reference to the transportation count of the indictment here involved, it will be seen that the charge of transporting is laid in the language of section 860, which makes it unlawful for "any person * * * to * * * transport or convey any alcoholic liquors from any point without the state into this state, or from one point to another in this state, or to deliver the same to any person, " etc. By comparison of that language with the terms of section 872, providing that "whoever shall knowingly transport * * * any alcoholic liquors known by him to have been illegally sold or procured, " etc., it is apparent that the illegal transportation denounced by section 872 is not the same as that denounced by section 800. The element of knowledge...

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13 practice notes
  • Harvey v. State of South Carolina, Civ.A.No. 70-90
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 12, 1970
    ...11, designated as the Uniform Post-Conviction Act, cited as §§ 17-601 to 17-612, S.C.Code 1962 Anno. 3 Ex parte Klugh, 132 S.C. 199, 128 S.E. 882. 4 Ex parte Billings, 46 F.Supp. 663, (D.C. Kan.), aff. Billings v. Truesdell, 135 F.2d 505 (10th Cir.) rev. 321 U.S. 542, 64 S. Ct. 737, 88 L.Ed......
  • Copeland v. Manning, No. 17544
    • United States
    • United States State Supreme Court of South Carolina
    • June 10, 1959
    ...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 an indictment charging in separate counts three violations of the liquor law. Und......
  • Vandegrift v. State, No. 323
    • United States
    • Court of Appeals of Maryland
    • June 23, 1961
    ...L.Ct., 40 N.J.Super. 111, 122 A.2d 245; Commonwealth v. Hull, 1937, 296 Mass. 327, 5 N.E.2d 565. In Ex parte Klugh, 1925, 132 S.C. 199, 128 S.E. 882, 886, where the defendant was given a general sentence of three years under a three-count indictment, each of which carried a maximum penalty ......
  • Williams v. Ozmint, No. 26573.
    • United States
    • United States State Supreme Court of South Carolina
    • December 22, 2008
    ...only available to a convicted defendant to attack the jurisdiction of the court imposing the sentence. See Ex parte Klugh, 132 S.C. 199, 128 S.E. 882 (1925) (recognizing that habeas corpus is a collateral remedy and calls in question only the jurisdiction of the court whose judgment is chal......
  • Request a trial to view additional results
13 cases
  • Harvey v. State of South Carolina, Civ.A.No. 70-90
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 12, 1970
    ...11, designated as the Uniform Post-Conviction Act, cited as §§ 17-601 to 17-612, S.C.Code 1962 Anno. 3 Ex parte Klugh, 132 S.C. 199, 128 S.E. 882. 4 Ex parte Billings, 46 F.Supp. 663, (D.C. Kan.), aff. Billings v. Truesdell, 135 F.2d 505 (10th Cir.) rev. 321 U.S. 542, 64 S. Ct. 737, 88 L.Ed......
  • Copeland v. Manning, No. 17544
    • United States
    • United States State Supreme Court of South Carolina
    • June 10, 1959
    ...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 an indictment charging in separate counts three violations of the liquor law. Und......
  • Vandegrift v. State, No. 323
    • United States
    • Court of Appeals of Maryland
    • June 23, 1961
    ...L.Ct., 40 N.J.Super. 111, 122 A.2d 245; Commonwealth v. Hull, 1937, 296 Mass. 327, 5 N.E.2d 565. In Ex parte Klugh, 1925, 132 S.C. 199, 128 S.E. 882, 886, where the defendant was given a general sentence of three years under a three-count indictment, each of which carried a maximum penalty ......
  • Williams v. Ozmint, No. 26573.
    • United States
    • United States State Supreme Court of South Carolina
    • December 22, 2008
    ...only available to a convicted defendant to attack the jurisdiction of the court imposing the sentence. See Ex parte Klugh, 132 S.C. 199, 128 S.E. 882 (1925) (recognizing that habeas corpus is a collateral remedy and calls in question only the jurisdiction of the court whose judgment is chal......
  • Request a trial to view additional results

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