Parker v. State Highway Dept.

• Decision Date: 05 November 1953
• Docket Number: No. 16793,16793
• Citation: 224 S.C. 263,78 S.E.2d 382
• Parties: PARKER v. STATE HIGHWAY DEPARTMENT.
• Court: South Carolina Supreme Court

Page 382

78 S.E.2d 382

224 S.C. 263

PARKER v. STATE HIGHWAY DEPARTMENT.

No. 16793.

Supreme Court of South Carolina.

Nov. 5, 1953.

T. C. Callison, Atty. Gen., James S. Verner, Asst. Atty. Gen., Daniel R. McLeod, Asst. Atty. Gen., for appellant.

James P. Mozingo, III, John L. Nettles, Darlington, for respondent.

OXNER, Justice.

We are asked to determine whether during the pendency of an appeal from a conviction and sentence for driving an automobile while under the influence of intoxicating liquor, the Highway Department is authorized to suspend the license of the person so convicted.

Respondent was arrested on November 25, 1952, for driving a motor vehicle while under the influence of intoxicating liquor. He was tried and convicted in the Recorder's Court for the Town of Darlington on May, 19, 1953. A report of his conviction was promptly made to the Highway Department as required by Section 46-347 of the 1952 Code. After receiving this report, the Department, on May 25, 1953, under the authority of Section 46-348, suspended respondent's driver's license for six months. He then appealed to the Court of General Sessions for Darlington County from the conviction and sentence in the Recorder's Court. Notice was also served on the Highway Department that he would move in the Circuit Court on June 13, 1953, for an order staying the suspension of his license pending the outcome of his appeal. The stay order requested was granted by the Circuit Judge on June 30, 1953. The Court concluded that the attempted revocation of respondent's license was premature and could not lawfully be made during the pendency of the appeal from his conviction. The correctness of this conclusion is challenged by the Highway Department.

Under the terms of Section 46-347, all clerks of court, magistrates and city recorders are required to make a report to the Motor Vehicle Division of the Highway Department of every conviction, plea of guilty, or forfeiture of bail for violating any law of this state or the ordinance of any municipality prohibiting a person from operating a motor vehicle while under the influence of intoxicating liquor. Such report must be made within ten days after such conviction, plea of guilty or forfeiture of bail.

Section 46-348 provides that 'the Department shall suspend the driver's license of any person who is convicted, receives sentence upon a plea of guilty or forfeits bail posted for the violation' of any law of this State, or the ordinance of any municipality of this State, that prohibits a person from operating a motor vehicle while under the influence of intoxicating liquor, drugs or narcotics, 'for a period of six months for the first conviction, plea of guilty or forfeiture of bail, a period of one year for the second conviction, plea of guilty or forfeiture of bail and a period of two years for the third and each subsequent conviction, plea of guilty or forfeiture of bail.'

The Court below held that an appeal from a conviction and sentence for operating a motor vehicle while under the influence of intoxicating liquor acted as a supersedeas, so as to preclude any action by the Highway Department with respect to the suspension of respondent's license until final disposition of the appeal. Appellant concedes that an appeal from a judgment of conviction stays the execution of the sentence, but denies that the suspension of the license constitutes any part of the punishment for such offense, and asserts that it is mandatory upon the Highway Department to revoke the license of any person who has been convicted for driving an automobile while under the influence of intoxicating liquor. It is appellant's view that the word 'convicted' as used in Section 46-348 was intended to mean a verdict of guilty and not a final judgment on appeal.

The difficulty in determining the question before us arises from the fact that the word 'convicted' has no fixed and inflexible meaning. As applied to criminal offenses, it is used in varied senses. In Commonwealth v. Lockwood, 109 Mass. 323, it is said: 'The ordinary legal meaning of 'conviction', when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while 'judgment' or 'sentence' is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained.' But the word is also often used as including both the ascertainment of the guilt of the accused and the judgment thereon by the Court. We had occasion to quote several definitions of the word 'conviction' in Smith v. Todd, 155 S.C. 323, 152 S.E. 506, 50 A.L.R. 1529. Also, see South Carolina State Board of Dental Examiners v. Breeland, 208 S.C. 469, 38 S.E.2d 644, 167 A.L.R. 221. Various meanings of this word are discussed at length in the following cases: Snodgrass v. State of Texas, 67 Tex.Crim.R. 615, 150 S.W. 162, 41 L.R.A., N.S., 1144; State ex rel. Scott v. Cox, Mo., 243 S.W. 144; Quintard v. Knoedler, 53 Conn. 485, 2 A. 752. Also, see 13 C.J. 905, 18 C.J.S., Conviction, p. 97.

We shall assume that the word 'convicted', as used in the statute under consideration, means not only a verdict of guilty but embraces the sentence of the court thereon, and proceed to determine whether the statute also contemplates, in the case of an appeal, the final judgment and disposition of the case and an end of the prosecution. No case involving this precise question is cited in the briefs. Our attention has been called to a line of cases construing the word 'conviction' in statutes authorizing the disbarment of attorneys for conviction of crime. The decisions seem to be divided on the question as to whether an appeal so suspends the judgment in a criminal case that an attorney is not liable to be disbarred under such a statute pending the determination of an appeal from his conviction, but the weight of authority seems to be to the effect that there may be disbarment notwithstanding an appeal has been taken and is pending from the conviction. 7 C.J.S., Attorney and Client, § 21(c); 5 Am.Jur. Attorneys at Law, § 282. It has also been held that under a statute which permits evidence of a conviction for a felony to be given as affecting the credibility of a witness, the taking of an appeal from a judgment of conviction does not annul it, so as to prevent evidence thereof from being given to affect the credibility of the convicted person, Hackett v. Freeman, 103 Iowa 296, 72 N.W. 528.

The cases relating to the subjects just mentioned, while to some extent analogous and helpful, are not decisive, for the meaning of 'convicted' when used in a statute is largely dependent upon the context, the subject matter and the purpose to be effected. The only decision which we have been able to find touching directly upon the question before us is Goulter v. Huse, 196 Wash. 652, 84 P.2d 126, 127. That case involved the construction of a Washington statute which authorized the Director of the Department of Licenses, in his sound discretion, to suspend the driver's license of any person whenever he had reason to believe that such person had committed certain offenses, of which driving under the influence of intoxicants was one. The appellant was convicted of this offense before a justice of the peace and appealed. Thereafter, the Director suspended his license for a period of one year. He immediately brought an action for the purpose of vacating this suspension and having his license restored, contending...