State v. Barnett

• Decision Date: 24 August 1914
• Docket Number: 8923.
• Citation: State v. Barnett, 98 S. C. 422, 82 S.E. 795 (S.C. 1914)
• Parties: STATE v. BARNETT.
• Court: South Carolina Supreme Court

82 S.E. 795

98 S.C. 422

STATE v. BARNETT.

No. 8923.

Supreme Court of South Carolina

August 24, 1914

Appeal from General Session Circuit Court of Berkeley County; Ernest Moore, Judge.

Nathan Barnett was convicted before a magistrate.Judgment was affirmed by the circuit court, and he appeals.Reversed.

Nathan Barnett, of St. Stephens, for appellant.

Solicitor P. T. Hildebrand, of Orangebury, for the State.

HYDRICK J.

In October, 1913, the prosecutor, D. Riff, a merchant of St Stephens, employed defendant, who is an attorney at law, to collect certain claims, one of them being against a colored laborer, named Clark, for $10.37.Defendant saw Clark and agreed to accept monthly payments, until the claim was paid.On November 12th Clark paid defendant $6.On December 11th not being able to find defendant, he paid G Rittenberg, a merchant of St. Stephens, $4 for defendant.About that time, defendant received for collection a claim against Riff, and on his failure to pay it sued him in the court of Magistrate Wilder.The case was tried December 17th and judgment went against Riff.Immediately after the rendition of the verdict, Riff swore out a warrant before Magistrate Wilder for defendant, charging him with breach of trust, with fraudulent intent in the collection and misappropriation of the money due him by Clark.Thereafter, on motion of Riff, the venue was changed to Magistrate Edwards, on the ground that Magistrate Wilder was a material witness for the prosecution.In the meantime, on December 30, Clark paid defendant 37 cents, the balance due by him to Riff, and exhibited to defendant Rittenberg's receipt for the $4 paid to him, explaining why he had paid the money to Rittenberg.On the same day, defendant, having collected the full amount due by Clark, left with John Klintworth, a merchant of St. Stephens, for Riff, the amount due him out of the Clark collection, with request that he notify Riff that he had the money for him, and that he could get it by calling for it.Defendant also requested Magistrate Wilder to notify Riff to the same effect.Riff was so notified, and called at the store of Klintworth the same day, but refused to take the money.Defendant left the money with Klintworth instead of paying it to Riff in person, because he and Riff were not on speaking terms, on account of his having sued Riff.When defendant's case was called for trial, on January 20th, he demanded a jury.The magistrate told him he would have to put up $3 to pay the jurors.At first he refused; but, on being told by the magistrate that he must do so, he paid it, under protest.The result was a mistrial, the jury having failed to agree.After the trial, defendant was informed by one of the jurors that the magistrate's constable, who had summoned him, had attempted, on the way to court, to influence him against defendant.He was also informed that the constable had publicly declared that, at the next trial of defendant, he could get a jury, outside of St. Stephens, which would convict him in five minutes.Thereupon defendant prepared an affidavit for a change of venue, and sent it to Magistrate Edwards, who replied by letter, dated February 7th, that the motion would have to be made in open court, at Bonneau, on February 10th, at which place and time the case was set for trial.The record discloses no reason for changing the place of trial from St. Stephens to Bonneau.On February 10th, defendant appeared and presented his affidavit, in support of his motion for change of venue, wherein he affirmed that he believed that Magistrate Edwards was biased and prejudiced against him, and that he did not believe that he could get a fair trial before him, for the following reasons:

"First.That the said magistrate had expressed his opinion, to several persons, unfavorable to the defendant herein.

Second.That under the direction of said magistrate, his official constable while in charge of a juror, attempted to influence said juror against the defendant.

Third.That said magistrate, contrary to law, refused to direct a verdict for the defendant herein, where all the evidence of the prosecution in the case failed to prove that a crime as charged in the indictment was committed, and that the defendant was guilty of the crime as charged, or any other crime.

Fourth.That said magistrate maliciously prevented the defendant from showing at the trial the real motive of the prosecutor for obtaining the warrant against the defendant and causing his arrest.

Fifth.That said magistrate, at the trial of the case, unfairly admitted evidence that was irrelevant and immaterial to the issue, but which tended to confuse the jury and was prejudicial to the defendant, and thereby preventing the jury from obtaining the real and true facts in the case, and thereby preventing the jury from reaching a verdict in said case.

Sixth.That the foreman and other members of the jury informed the defendant that the magistrate was very unfair and partial against the defendant, and was biased against the defendant throughout the trial of the case.

Seventh.That said magistrate, without any warrant of law, and contrary to the express provisions of the Criminal Code, compelled the defendant herein to pay the sum of $3 as a jury fee, thereby extorting from the defendant money against his will, and against the laws of South Carolina.

Eighth.The defendant is informed that the said magistrate has a personal motive in finding the defendant guilty of the alleged charge, although the defendant is innocent of the alleged criminal charge against him, and that there is no legal evidence to substantiate even a color of a criminal charge against the defendant herein."

As soon as the affidavit was read, the magistrate told defendant that he was in contempt of court for presenting it, and imposed sentence therefor of imprisonment in jail for 24 hours, or the payment of a fine of $20, and overruled his motion for a change of venue.Defendant then moved for a continuance, to give him time to apply to a circuit judge for a writ of mandamus to compel the change of venue, which was refused.He then moved for a continuance for one day, stating that he had appeared solely for the purpose of moving for a change of venue, and had not brought his witnesses, and was therefore not prepared for trial.This motion was also refused, and the trial was ordered to proceed.A jury was impaneled which, after hearing the evidence and after deliberating four minutes, returned a verdict of guilty.From the sentence on the verdict, as well as from that for contempt, the defendant appealed.

Defendant represented himself in the courts below and in this court.The record, as presented to this court, is very badly prepared.There is much confusion of statement, complaint, and argument, in the record and grounds of appeal, and so much contradiction involved that it has been difficult to analyze it and clearly state the issues properly before the court.

Consideration of the grounds of the motion for change of venue shows that they do not meet the requirements of the statute, as interpreted by this court, in that they do not state facts sufficient to disqualify the magistrate in such manner that if the facts stated were false, the affidavit would form the basis of an indictment for perjury.State v. Conkle,64 S.C. 371, 42 S.E. 173;Bacot v....