State v. Charles

• Decision Date: 08 March 1937
• Docket Number: 14450.
• Parties: STATE v. CHARLES.
• Court: South Carolina Supreme Court

190 S.E. 466

183 S.C. 188

STATE v. CHARLES.

No. 14450.

Supreme Court of South Carolina

March 8, 1937

Appeal from Spartanburg County Court; A. R. Merchant, Judge.

J Harry Charles was convicted of the violation of statutes relating to the unlawful possession and transporting of contraband liquor, and he appeals.

Reversed and conviction set aside.

J. L Lancaster, of Spartanburg, for respondent.

FISHBURNE Justice.

The appellant, J. Harry Charles, was indicted together with one Vance Phillips, in the Spartanburg county court, charged with the unlawful possession and transporting of contraband liquor. Prior to the calling of the case for trial against the two defendants, the solicitor investigated the facts, as is usual in such cases. This investigation convinced him that the car in which Phillips and Charles were riding at the time they were apprehended was owned and driven by Phillips; that Charles had only been picked up by Phillips a short time before the officers pursued them; that all of the liquor in the car belonged to Phillips, with the exception of about one-half gallon, which Charles had on his person; and that Charles had not participated in the possession or transportation of any of the liquor, with the exception of the half gallon.

Following his investigation, the solicitor agreed with counsel for the defendant, Charles, that he would recommend to the county judge a sentence of three months for Charles in the event he entered a plea of guilty to the count in the indictment charging unlawful possession of the half gallon of liquor. When the case was called for trial, the defendant Phillips entered a plea of guilty to the count charging the unlawful transportation of liquor; and Charles entered a plea of guilty to the charge of unlawful possession of liquor pursuant to the agreement with counsel for Charles. The solicitor then, in open court, recommended to the county judge that Charles be given a sentence of three months. The trial judge declined to accept the recommendation of the solicitor, and immediately imposed a heavier sentence upon the appellant. Thereupon, the attorney for the appellant, Mr Joseph E. Hines, called the attention of the court to the fact that the plea of guilty entered by his client had been made in the belief that the recommendation of the solicitor would be acceptable to the court, and he therefore requested that the appellant be permitted to withdraw his plea of guilty and enter a plea of not guilty. This request was granted by the court.

The trial judge, following these proceedings, ordered the solicitor to proceed with the trial of the case against the defendant, Charles, and directed the clerk to forthwith draw a jury for that purpose. The solicitor objected to the immediate trial of the case, upon the ground that the appellant had pleaded guilty in the presence of the petit jury in open court; that the colloquy between the court and the attorneys had taken place in the presence of the entire panel drawn for the week, and that he thought it was not possible for the appellant to receive a fair and impartial trial before the same jurors who had heard what had transpired. He insisted that in fairness to the appellant the case should be continued. The trial judge thereupon stated that the case would be called for trial at 2:30 o'clock p. m., on that day, and that if the county solicitor refused to try it, he had the power to cite him for contempt, but that instead of doing so, he would appoint Mr. J. L. Lancaster, a member of the Spartanburg Bar, as special solicitor to try the case in his place, holding, over the vigorous protest of the county solicitor, that the court had the right to order the case to trial, and to exercise the power to appoint another attorney as solicitor; and further holding, in effect, that the solicitor's right to call cases was subject to the court's direction as to what cases should be called, and when they should be tried.

When the solicitor again attempted to present his views in regard to what he conceived to be his legal rights as a duly elected officer, and to point out his understanding of the limitations of the power of the court to determine what cases should be called for trial, and in what order, the court directed the solicitor to take his seat, and announced that he would hold him under a charge of contempt.

When the court reconvened after the noon recess, the county solicitor, in open court, entered a nolle prosequi across the indictment, and announced to the court what he had done. This action on the part of the solicitor was immediately overruled by the trial judge, and at the same time he ordered the sheriff to take the solicitor into his custody.

Counsel for the appellant, Mr. Hines, then moved for a continuance of the case on the ground, not only that there was no valid indictment before the court, but upon the further ground that the defendant could not receive a fair and impartial trial because of what had transpired between the court and the solicitor, all of which had taken place in the presence of the petit jurors, who had heard the entire proceeding, and, further, that the rights of the defendant had been prejudiced because of his plea of guilty in their presence, and the withdrawal of that plea. The motion for continuance was overruled, the court stating that the entry of the nolle prosequi on the indictment was null and void, and the case then proceeded to trial.

When the jury was drawn, the appellant's counsel objected to the entire panel on the ground that there was no indictment before the court, and when he persisted in stating his objections, after he had been ordered to desist by the trial judge, he, too, was ordered by the court to be taken in charge by the sheriff for contempt of court. Whereupon, Mr. Hines stated to the court that he could not properly defend his client under circumstances wherein he had been cited for contempt. He refused to participate in the trial, but did not withdraw from the case. Mr. J. L. Lancaster, upon the request and under the instructions of the county judge, undertook to act as county solicitor, and the trial resulted in a verdict of guilty.

The exceptions of the appellant raise several important issues. A decision, however, of the vital question presented-which is, Did the county solicitor have authority to enter a nolle prosequi on the indictment, and was it error to proceed with the trial thereafter?-will dispose of the case.

From a review of the authorities in this state, it appears that the question now before us has never hitherto been squarely presented for decision. The facts of this case make it a question of the gravest public concern that the respective rights and powers of these public officers, who exercise functions so important under our system of government, should be definitely settled and defined. Otherwise, it is conceivable that there might be a repetition of the regrettable incidents which this record discloses, arising from the conscientious assertion of conflicting prerogatives, which cannot but tend to bring about a condition detrimental to the due administration of justice, and subversive of all orderly procedure.

Article 5, section 29, of the Constitution of 1895 contains, among others, the following provision: "In the event of the establishment of County Courts the General Assembly may provide for one Solicitor for each county in the place and instead of the Circuit Solicitor, and may prescribe his powers, duties and compensation."

Section 97 of our 1932 Code provides:

"Duties of County Solicitor-The said County Solicitor shall represent the State in all cases brought before the said County Court wherein the State is a party, and shall have the same powers and perform the same duties with reference thereto as a Circuit Solicitor with reference to cases brought before the Court of General Sessions."

Section 197 of the Code contains this language: "It shall be the duty of the County Solicitor to appear for and represent the State in all criminal cases tried in the said county court."

It is stated in 22 R.C.L., 97, that the practice of entering a nolle prosequi originated in the criminal procedure of England, under which the power of entering a nolle prosequi was lodged exclusively in the Attorney General; that in the gradual development of criminal procedure in the United States, this particular right of the prosecuting officer has remained, but statutory enactment and limitation by the courts, in some jurisdictions, have stripped him of most of his absolute power in this regard, and the consent of the court is now required in many cases before a nolle prosequi can be entered; that, both under statutory enactment and in the absence thereof, the rulings of the courts recognize that the right varies according to the stage or period of the prosecution at which the nolle prosequi is sought to be entered; and that the weight of authority is to the effect that, in the absence of statute on the subject, the entering of a nolle prosequi before the jury have been impaneled and sworn lies in the sole discretion of the prosecuting officer.

The same rule is announced in 16 C.J. § 780, page 432, where it is said that at the common law, only the Attorney General could exercise the power to enter a nolle prosequi upon an indictment; and where there is no statute upon the subject this power is still reposed in the Attorney General or the several public prosecutors. It is there said that there are three periods of the prosecution in which a nolle prosequi may be entered, namely, before the jury is impaneled, while the case is before the jury, and after the verdict; and that a nolle prosequi may be entered without defendant's consent at any time before the...