State v. Bailey

• Decision Date: 31 October 1966
• Docket Number: No. 18566,18566
• Citation: 248 S.C. 438,151 S.E.2d 87
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Ray S. BAILEY and Luke Forrester, Appellants.

Page 87

151 S.E.2d 87

248 S.C. 438

The STATE, Respondent, v. Ray S. BAILEY and Luke Forrester, Appellants.

No. 18566.

Supreme Court of South Carolina.

Oct. 31, 1966.

Carter & Hill, Greenville, Betty M. Sloan, Columbia, for appellants.

Daniel R. McLeod, Atty. Gen., Edward B. Latimer, Asst. Atty. Gen., Columbia, B. O. Thomason, Jr., Sol., Greenville, for respondent.

MOSS, Chief Justice.

The grand jury of Greenville County, on August 25, 1933, indicted Ray Bailey for the murder of one A. B. Hunt. The case against him was called for trial at the General Sessions Court of Greenville County on January 13, 1936. Upon his arraignment he entered a plea of not guilty. Thereafter, the solicitor and Bailey's retained counsel entered into negotiations concerning a possible guilty plea. Pursuant thereto it was agreed that Bailey would withdraw his plea of not guilty and enter a plea of guilty of murder with a recommendation to the mercy of the court. A jury was impaneled and the agreement reached was carried into effect by the verdict of said jury. Bailey was sentenced to imprisonment in the State Penitentiary for the term of his whole lifetime.

Bailey, on May 4, 1964, petitioned the Court of Common Pleas for Richland County for a writ of habeas corpus, alleging that his detention and restraint, under the aforesaid sentence, was unlawful and in violation of his constitutional rights. The State, by way of return, denied the allegations of the petition and alleged that Bailey was in lawful custody.

A hearing on the issues made by the habeas corpus petition and the return of the State was had before The Honorable John Grimball, Resident Judge of the Fifth Judicial Circuit. Thereafter, by order dated July 29, 1964, Judge Grimball set aside the guilty plea and the sentence imposed pursuant thereto and remanded the case to the General Sessions Court of Greenville County for a new trial. He further directed that Bailey be released from custod provided he posted a bond in the amount of Ten Thousand ($10,000.00) Dollars to be approved by the Clerk of Court of Greenville County. Thereafter, on July 30, 1964, the said Ray Bailey, as principal, and Luke Forrester, as surety, executed a bond to the State of South Carolina in the amount of Ten Thousand ($10,000.00) Dollars, which said bond was approved by the Clerk of the Court of General Sessions for Greenville County. The condition of this bond was:

'That if the said Ray Bailey shall personally appear before the Court of General Sessions next succeeding in the State aforesaid, to be holden at the usual place of judicature, in Greenville, said County and State, then and there to answer to a bill of indictment against the said Ray Bailey for Murder and to do and to receive what shall be enjoined by the Court, and not to depart the Court without license and in the meantime that the said Ray Bailey do keep the peace of the State, and be of good behavior towards all the citizens thereof, and especially towards one State of South Carolina then this Recognizance to be null and void, otherwise to remain in full force and virtue.'

The State appealed to this Court from Judge Grimball's order and, on November 10, 1965, this Court filed its opinion reversing and setting aside Judge Grimball's order. The judgment of this Court was as follows: 'The judgment of the lower Court is reversed. The writ of habeas corpus is discharged and the respondent is remanded to custody for the service of the sentence imposed upon him by the Court of General Sessions for Greenville County.' Bailey v. MacDougall, 247 S.C. 1, 145 S.E.2d 425.

Thereafter, counsel for Bailey moved before the late Honorable C. A. Taylor, Chief Justice, for a stay of the remittitur and an extension of the bond theretofore granted and upon which Bailey was released from custody. That petition was denied by order of Chief Justice Taylor, dated December 13, 1965.

On January 14, 1966, The Honorable T. B. Greneker, Presiding Judge of the Thirteenth Judicial Circuit, issued a rule to show cause to Ray S. Bailey, his attorney, and Luke Forrester, the surety on the bond heretofore referred to, requiring that they appear at the General Sessions Court for Greenville County on Friday, January 28, 1966, at 10:00 A.M. for the purpose of remanding Bailey to the Sheriff of Greenville County, or, if failing to produce him at that place and time, to show cause why the bond should not be estreated and judgment entered against both principal and surety for the sum of Ten Thousand ($10,000.00) Dollars.

Ray Bailey did not appear in response to the aforesaid rule to show cause. Admittedly, his whereabouts were unknown. However, a return was made on behalf of Bailey by his attorney and a return was made by Luke Forrester. The return of Bailey, made through his attorney, asserts that the Court of General Sessions for Greenville County did not have jurisdiction to estreat the bond because of the reversal by this Court of the order of Judge Grimball granting a new trial in the habeas corpus proceeding. Forrester raised the questions (1) Whether the bond signed by him as surety was an appeal bond or an appearance bond and whether the State waived its right to require an appeal bond; (2) Was there a breach of the bond; (3) Did the General Sessions Court of Greenville County have jurisdiction to estreat the said bond; and (4) Was the surety on said bond discharged or relieved from the performance of the condition of the bond by reason of the decision of this Court reversing the order of Judge Grimball.

The hearing as to why the bond heretofore referred to should not be estreated was heard by Judge T. B. Greneker, Presiding Judge, on January 24, 1966, and, thereafter, he issued an order, dated February 16, 1966, holding that the conditions of the bond had been breached and ordered that the bond be estreated and judgment entered in favor of the State of South Carolina against both Bailey and Forrester in the amount of Ten Thousand ($10,000.00) Dollars. Bailey and Forrester filed separate appeals from said order and such have been consolidated for hearing in this Court. The exceptions of the appellants preserved the questions above stated for consideration by this Court.

The bond or recognizance here involved was executed by the appellants pursuant to Section 17--310 of the Code, which provides that such shall be payable to the State and in this instance conditioned for Bailey to appear as a defendant before the Court of General Sessions for Greenville County to answer to a bill of indictment against him for murder and to do and to receive what shall be enjoined by the Court. This was an appearance bond as is asserted by the appellants. Bailey did not appear as required by the condition of the bond and the State of South Carolina instituted proceedings in accordance with Section 17--311 of the Code for the forfeiture of said bond or recognizance by reason of the noncompliance with the terms thereof by the said Bailey.

It is well settled that the Court of General Sessions has exclusive jurisdiction of proceedings to forfeit a recognizance for appearance to answer a charge in that Court. State v. Wilder, 13 S.C. 344; State v. Quattlebaum, 67 S.C. 203, 45 S.E. 162; State v. Cornell, 70 S.C. 409, 50 S.E. 22, and State v. Johnson, 77 S.C. 252, 57 S.E. 846. The procedure to estreat a bond or recognizance is not regulated by the Code of Civil Procedure but by the Criminal Code, Section 17--311 of the Code. In the Johnson case it was held:

'* * * A recognizance is an obligation of record in the case, and the cognizors thereby voluntarily submit themselves to the jurisdiction of the court as parties with respect to proceedings for estreat. The notice...