State ex rel. Philips v. Garren

• Court: South Carolina Supreme Court
• Citation: State ex rel. Philips v. Garren, 186 S.C. 333, 195 S.E. 834 (S.C. 1938)
• Decision Date: 14 March 1938
• Docket Number: 14640.
• Parties: STATE ex rel. v. GARREN et al. PHILIPS

195 S.E. 834

186 S.C. 333

STATE ex rel. PHILIPS v. GARREN et al.

No. 14640.

Supreme Court of South Carolina

March 14, 1938

Appeal from General Sessions Circuit Court of Greenville County Philip H. Stoll, Judge.

Proceeding by the State of South Carolina, on the relation of Virgil Philips, against W. A. Garren, agent for the State of North Carolina, under requisition, and others for a writ of habeas corpus, attacking a warrant of extradition whereby relator was being removed to North Carolina. From a judgment denying the writ, relator appeals.

Affirmed.

Bryson & Pyle and C. S. Bowen, all of Greenville, for appellant.

Robert Ashmore and J. G. Leatherwood, both of Greenville, for respondents.

E. C DENNIS, Acting Associate Judge.

We adopt the statement of facts printed in the case:

"On the 20th day of March, 1937, Hon. Clyde R. Hoey, as Governor of the state of North Carolina, issued his requisition to the Governor of the state of South Carolina, asking the extradition of Virgil Philips. Accompanying said requisition were a warrant for the arrest of said Virgil Philips therein charged with unlawfully, willfully, and feloniously breaking and entering a named store, and stealing and carrying away certain merchandise therein, in the county of Henderson, state of North Carolina; and affidavits of W. A. Garren, Elzie Stokes, Jessie Mae Ballenger; and the application for requisition issued by the solicitor of the Eighth judicial district of the state of North Carolina, together with the commission of W. A. Garren to receive the said Virgil Philips and deliver him to the authorities of Henderson county, N. C.

In response to the above-named documents, his Honor, Olin D. Johnston, as Governor of the state of South Carolina, on the 28th day of August, 1937, issued his warrant of extradition of the said Virgil Philips, under which the said Virgil Philips was arrested, and ever since has been in the custody of John A. Martin, as sheriff of Greenville county, S.C. Upon being arrested, the said Virgil Philips exhibited his petition for a writ of habeas corpus to Hon. G. Duncan Bellinger, wherein he recited that he was a resident of Greenville county, S. C.; that the warrant of extradition was unlawfully issued in that the supporting affidavits were insufficient and based on hearsay, and, furthermore, petitioners could establish that he was not in the state of North Carolina when the offense was alleged to have been committed. Upon this petition, Judge Bellinger issued a rule to show cause, returnable before Hon. G. Dewey Oxner, at Greenville, S. C., and the matter was then referred to Hon. Philip H. Stoll who heard the same and denied the writ. Appellant duly gave notice of intention to appeal from said decision."

The offense charged is set forth in the affidavit of W. A. Garren, as follows:

"W. A. Garren being duly sworn, complains, and says that at and in the said county of Henderson, Hendersonville township, on or about the 1st day of March, 1937, Virgil Philips did unlawfully, willfully, and feloniously break and enter the store of Nellie Wright, steal and carry away merchandise, chewing gum, candy, meats, tobacco, cigarettes, and one zipper bag. He is now a fugitive from justice having fled to another state to evade arrest. The crime committed would imprison the defendant for one year or more. Contrary to the form of the statute, and against the peace and dignity of the state.

W. A. Garren.

Subscribed and sworn to...