Moore v. Patterson

• Decision Date: 03 July 1943
• Docket Number: 15556.
• Citation: 26 S.E.2d 319,203 S.C. 90
• Parties: MOORE v. PATTERSON, Acting County Sup'r. STATE v. MOORE.
• Court: South Carolina Supreme Court

26 S.E.2d 319

203 S.C. 90

MOORE v. PATTERSON, Acting County Sup'r.

STATE v. MOORE.

No. 15556.

Supreme Court of South Carolina

July 3, 1943

Henry Campbell Miller, of Anderson, for appellant-petitioner.

Rufus Fant, Jr., of Anderson, for respondent-appellant.

E. H HENDERSON, Acting Associate Justice.

This case involves the construction of Section 1038-1 of the Code relating to the suspension of sentences and the placing of defendants on probation.

In November, 1941, Calvin Moore plead guilty to an indictment charging him with a felony and he was sentenced by his Honor Judge G. Duncan Bellinger, to three years' imprisonment. The sentence provided that upon the service of one year the balance should be suspended and the defendant placed on probation for a period of three years.

After having served seventy per cent of the one year set out in the sentence, he sought release through habeas corpus proceedings upon the ground that he was then entitled to a credit of thirty per cent of one year for good behavior. He was a first offender, and his behavior as a prisoner had been good.

The supervisor in his return contended that the petitioner would not be entitled to a release until the service of the full one year, without any reduction therefrom for good behavior and he also contended that the suspension provision of the sentence of Judge Bellinger was without authority of law, and that before the petitioner would be entitled to his release he should be required to serve three years, less any proper credit for good behavior.

The application for release was heard by his Honor, Judge G. B. Greene, who passed an order remanding the petitioner to the custody of the supervisor to serve the remainder of the one year; and also holding that he was entitled to a release from custody at the end of such year.

From this order both parties have appealed.

The appeal of the petitioner is disposed of by the two recent cases of Thompson v. Patterson, 201 S.C. 221, 22 S.E.2d 590; and Nichols v. Patterson, S.C., 25 S.E.2d 745, filed May 24, 1943, which clearly hold that the reduction for good behavior provided by Section 1578 of the Code must be made at the end of the sentence.

Taking up now the appeal of the supervisor, his contention is that the Circuit Judge should have held that the suspension and probation part of the sentence of Judge Bellinger was a nullity, since he had no authority to require the sentence to be put into execution with a provision that after the service of a portion the balance should be suspended and the defendant placed on probation. He insists that under the probation and parole act, if the Circuit Judge suspends any part of the imprisonment, he must suspend all of it before placing a defendant on probation; and says that the suspension provision of the sentence being void, the remaining language of it required imprisonment for a term of three years.

The question then is: Can a Circuit Judge impose a sentence of imprisonment in a case of this sort and provide in it that after the defendant shall have served a part of the time he be placed on probation for the remainder of the term? It is clear that trial Judges had no general and unlimited power at common law to suspend sentences, but such authority may be conferred upon them by the General Assembly. State v. Abbott, 87 S.C. 466, 70 S.E. 6, 33 L.R.A.,N.S. 112, Ann.Cas.1912B, 1189.

The Abbott case was decided in 1911. The following year the General Assembly enacted a statute, now appearing as Section 1039 of the Code, giving to Circuit Judges the power, in cases involving misdemeanors, in their discretion to suspend sentences imposed by them, upon such terms and conditions as in their judgment may be fit and proper. The statute itself provides that this authority shall not extend to cases of felony, and this is emphasized by the case of State v. Breuer, 113 S.C. 177, 102 S.E. 15.

In 1918 this Court approved the action of the trial Judge in the case of State v. Teal, 108 S.C. 455, 95 S.E. 69, in which a sentence of three years was given for seduction, a misdemeanor, suspended upon the service of eighteen months and the payment of certain sums of money for the support of the child.

In the case of Singletary v. Wilson, 191 S.C. 153, 3 S.E.2d...