Long v. McMillan, 16978

• Decision Date: 15 March 1955
• Docket Number: No. 16978,16978
• Citation: 86 S.E.2d 477,226 S.C. 598
• Parties: J. Reuben LONG, as Solicitor of the Twelfth Judicial Circuit, Respondent, v. Claude R. McMILLAN, Chief Highway Commissioner of South Carolina, and Tee Hutto, Captain of the South Carolina Highway Patrol, Appellants.
• Court: South Carolina Supreme Court

Page 477

86 S.E.2d 477

226 S.C. 598

J. Reuben LONG, as Solicitor of the Twelfth Judicial Circuit, Respondent, v. Claude R. McMILLAN, Chief Highway Commissioner of South Carolina, and Tee Hutto, Captain of the South Carolina Highway Patrol, Appellants.

No. 16978.

Supreme Court of South Carolina.

March 15, 1955.

Atty. Gen., T. C. Callison, Asst. Atty. Gen., James S. Verner, for appellants.

Solicitor J. Reuben Long, Conway, for respondent.

TAYLOR, Justice.

Appellants, Claude R. McMillan and Tee Hutto, Chief Highway Commissioner and Captain of the South Carolina Highway Patrol, respectively, were found guilty of being in contempt of the General Sessions Court of Horry County on August 11, 1954, and each sentenced to serve six months on the public works of such county or pay a fine of $600.

Appellants were served on July 28, 1954, with a Notice, Affidavit, Petition, and Rule to Show Cause why they should not be adjudged in contempt of Court. The attached Rule appears as follows:

'To: Claude R. McMillan, Chief Highway Commissioner of South Carolina, and Tee Hutto, Captain of the South Carolina Highway Patrol:

'You are Hereby Directed to show cause before me on the 11th day of August, 1954, at 11:00 a. m., in the Courtroom of the Horry County Courthouse, Conway, South Carolina, or as soon thereafter as you may be directed to appear, why you should not be adjudged in contempt of Court for the alleged willful violation of an Order of this Court arising out of the case of The State v. Stacy Huggins as is set forth in the verified petition accompanying this Order.

'The Sheriff of Horry County, or his lawful deputies, is herewith directed to make service of the copies of the Petition and Rule to Show cause upon the Respondents.

'G. Badger Baker,

'Presiding Judge, Twelfth

'Judicial Circuit.

'At Chambers,

'Florence, S. C.

'July 28, 1954.'

Cpl. R. W. Crawford of the South Carolina Highway Patrol, on January 30, 1954, arrested one Stacy Huggins, who, in an intoxicated condition, had, in the presence of Crawford, entered a service station in Horry County and fired three shots at one Gary Miller, using a .32 Caliber Smith and Weston pistol, less than twenty inches in length and three pounds in weight. Cpl. Crawford disarmed the said Huggins and placed him in jail. Two warrants were issued the next day, one at the request of Cpl. Crawford, by Magistrate Bryant of Loris for Huggins. Crawford at that time had in his possession and continued to so keep the pistol until July.

Previously, on November 8, 1951, because of certain irregularities in the handling of firearms theretofore taken from persons arrested by a few members of the Highway Patrol, the following rule was adopted by the Highway Department:

'South Carolina

'State Highway Department

'Columbia

'November 8, 1951

'From: Captain, Highway Patrol

'To: All Lieutenants

'Subject: Seizure of Firearms

'Within the past few days there have been brought to my attention several cases of Patrolmen seizing from traffic violators unlawful or concealed Firearms and neither making proper charges against the violators nor accounting for the firearms through the proper authorities.

'Effective immediately, when any member of the Patrol seizes any piece of firearms being unlawfully carried, he will place the proper charge against the violator and surrender the seized firearms to the Magistrate, Recorder or Mayor before whom the case is brought, and a written receipt will be obtained and attached to daily report of the officer.

'Whenever it is necessary that any firearms or other property be removed from any motor vehicle for safekeeping, such property will be returned to the lawful owner as soon as possible and written receipt obtained from the owner.

'Hutto'

The foregoing regulation was well known by both Lt. McClellan and Cpl. Crawford, but no daily report was made showing the seizure by Crawford of the Huggins' weapon until June 11th, neither was it surrendered to the Magistrate who had issued the arrest warrants.

The Grand Jury returned true bills on both indictments at the June Term of the General Sessions Court for Horry County, and Huggins, through agreement of counsel whereby he was to plead guilty as to one indictment, the other one being nolprossed, plead guilty of violating Section 16-141, 1952 Code of Laws for South Carolina, which forbids the pointing of firearms at any person, and was sentenced by the Honorable G. Badger Baker on June 11th, 1954, to pay a fine of $750 or serve one year in jail; the fine was paid and the other case was nol-prossed.

Respondent alleges on information and belief that sometime after the imposition of the sentence, but on the same day, Cpl. Crawford went to the office of the presiding Judge in the Courthouse and discussed with him the disposition of the pistol and was verbally advised or ordered to keep the pistol until the further order of the Court. This conversation between Cpl. Crawford and Judge Baker took place in the Judge's Chambers and not in open Court, was not put into writing, or entered upon the records of the Court.

Honorable Frank A. Thompson, attorney of Conway, South Carolina, representing Huggins sought the return of the pistol after the trial and inquired of the Clerk of Court as to the whereabouts of the pistol and if it had been turned in to him. The Clerk of Court thereafter on June 11th, 1954, asked Cpl. Crawford about the pistol, who replied that he did not know whether he was going to turn the gun in or not. Thereafter, on the 16th of June, the Clerk of Court wrote Cpl. Crawford asking that the gun be turned in to him and disposed of in the regular manner but received no reply.

The first knowledge either Appellant had with regards to the situation was through a letter from Mr. Thompson to Mr. McMillan, dated June 29th, 1954. As a result of the Thompson letter, an investigation was made by a special investigator for the Highway Department, who reported his findings to Appellants on July 2nd, 1954. Lt. McClellan and Cpl. Crawford upon being interrogated stated that they knew of the Order of the Highway Department as to the disposition of firearms, dated November 8, 1951, and according to the testimony of the investigator and Appellant Hutto, admitted they had done wrong in not complying with this directive. Both Lieutenant McClellan and Corporal Crawford deny having admitted to any wrong.

Cpl. Crawford was relieved of his duties with the Highway Department for a period of fourteen days, demoted to the rank of patrolman, and transferred to another part of the State. Lt. McClellan, Crawford's immediate superior, was relieved of his duties for fourteen days, demoted to the rank of sergeant, and transferred to another section of the State.

On or about July 12th, 1954, the Appellant McMillan was called via long distance telephone by a citizen or citizens of Horry County, who said they were interested in the matter and wished to discuss with him what they considered to be the unjust treatment accorded McClellan and Crawford. As a result a meeting was arranged and held in Columbia with Mr. McMillan on July 21st, 1954. At this meeting, Mr. McMillan for the first time was shown a letter from Judge Baker to the foreman of the Grand Jury, dated July 10th, 1954, to the effect that Cpl. Crawford was instructed by him 'to retain possession of this gun until he received a Court Order for its release.' In the meantime, Judge Baker had written the following letter to Mr. McMillan on July 16th, 1954:

'Honorable Claude R. McMillan

'Chief Highway Commissioner

'Columbia, S. C.

'Dear Claude:

'At this year's June term of the Court of General Sessions for Horry County, a defendant by the name of Huggins was indicted for pointing firearms. He entered a plea of guilty and received a substantial fine. The person against whom the defendant directed the pointing of the firearm is Corporal Crawford of the State Highway Patrol. Following the publication of the sentence in the Huggins case, the question came up as to the disposition of the weapon involved. I instructed Corporal Crawford to hold the weapon in his possession until the further order of the Court. Under this direction he retained custody of the weapon as an officer of the Court. No one made application to me for disposition of the gun, nor has any petition as yet been presented. Therefore, Corporal Crawford's possession of the gun had been the same as if in custody of the Court.

'I have received information, which at this time is pure hearsay, that Corporal Crawford has been suspended by the Captain of the Highway Patrol for retaining the gun in question and not turning it over to the Clerk of Court; and, further, that Lt. McClellan has also been suspended because of his knowledge of Corporal Crawford's possession of the gun and failing to take any steps towards having it turned over to the Clerk of Court. As stated, my information is hearsay, but inasmuch as these reports indicate the disciplining of two officers of the Highway Patrol for compliance with a Court order, it becomes necessary that I request you investigate this matter at your earliest convenience and let me have a report. If the facts substantiate the information that has come to me, I have no other alternative than to have Captain Hutto brought before me to show cause why he should not be adjudged in contempt of Court, and, if found in contempt, to be sentenced accordingly.

'You will understand that I do not have the slightest intention of attempting to enter into the operation of the Patrol Division of the South Carolina State Highway Department, but, on the other hand, as the Presiding Judge who passed sentence in the Huggins case, I cannot permit any obstruction or interference with any order passed in that case.

'With kind regards, I am

'Sincerely yours,

'(Sgd.) Badger,

'G. Badger Baker'

On July 19th, 1954, Mr. McMillan wrote Judge Baker by way of reply as follows:

'Honorable G. Badger Baker

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