State v. Breuer

• Decision Date: 27 January 1920
• Docket Number: 10367.
• Citation: 102 S.E. 15,113 S.C. 177
• Parties: STATE v. BREUER.
• Court: South Carolina Supreme Court

102 S.E. 15

113 S.C. 177

STATE v. BREUER.

No. 10367.

Supreme Court of South Carolina

January 27, 1920

Appeal from General Sessions Circuit Court of Charleston County; R W. Memminger, Judge.

A. L Breuer was prosecuted for bigamy. From so much of the judgment, on a conviction, as suspended sentence, the State appeals. Reversed.

T. P Stoney, Sol., and Paul M. McMillan, both of Charleston, for the State.

B. H. Mathews, of Charleston, for respondent.

GAGE J.

Upon a verdict of bigamy the court pronounced this judgment:

"Let the defendant, A. L. Breuer, be imprisoned at such labor as he can perform in the county jail at Charleston county, for a period of six (6) months and pay a fine of five hundred ($500.00) dollars. That the above sentence be suspended during good behavior upon the payment of two hundred ($200.00) dollars."

The only issue made by the state's appeal is that the court had no power to add the "suspension" to the judgment. The statute expressly provides that the power and authority to suspend shall not extend to cases of felony. 27 St. at Large, 773. So the primary issue to be decided is the character of the offense of bigamy; is it felony, or is it misdemeanor?

It would be fruitless to follow up at length the origin and meaning of the word "felony"; it is sufficient to say that the full ancient meaning of the word no longer attaches to it. By the common law the penalty for felony was death, and the confiscation of the estate of the felon. Bishop, § 615. In time the character of felony became modified, so that now the chief difference betwixt felony and misdemeanor consists in procedure. See Ency. Brit. vol. 10, p. 244.

"The question whether a particular offense is felony or misdemeanor can be answered only by reference to the history of the offense, and not by any logical test." Same authority.

A statute may define felony; in some jurisdictions so much is true, but there exists no such statute in this state, so "we look into the books upon common-law crimes, and see what was felony and what was not under the older laws of England." 1 Bish. § 616. An offense may be misdemeanor by express words of a statute, yet with penalties attached which are more often attached to felonies. And statutes have expressly made other offenses to be felony which before such were misdemeanors only. Those offenses are of course felonies which are by statute expressly declared to be such.

The...