State v. Clough, 16565

• Decision Date: 30 November 1951
• Docket Number: No. 16565,16565
• Court: South Carolina Supreme Court
• Parties: STATE v. CLOUGH.

Page 329

68 S.E.2d 329

220 S.C. 390

STATE v. CLOUGH.

No. 16565.

Supreme Court of South Carolina.

Nov. 30, 1951.

Kale R. Alexander, Columbia, S. C., for appellant.

Solicitor T. P. Taylor, Columbia, S. C., for respondent.

BAKER, Chief Justice.

The appellant, Rhett Clough, was indicted in the Court of General Sessions for Richland County, and was tried on the 14th day of September, 1950, and found guilty of the offense of grand larceny, and sentenced by the Presiding Judge, the Honorable Wm. H. Grimball, to 'be confined at hard labor upon the public works of Richland County for a term of 2 years or for a like term in the State Penitentiary.' This sentence was suspended and the defendant-appellant was placed on probation for a period of three years under the supervision of the South Carolina Probation and Parole Board, subject to the applicable law; and the conditions of the probation were therein stated, the same being in accordance with Section 1038-3, Code of 1942. There was included in the sentence, among the various conditions of probation, the following designated as (a), (b), (c) and (i):

'(a) Refrain from the violation of any State, Federal or Municipal Penal Law

'(b) Avoid injuries (injurious?) or vicious habits of conduct

'(c) Avoid persons and places of disreputable or harmful character

'(i) Follow Probation Officer's advice and instructions regarding recreational and social activities'

Thereafter, on October 3, 1950, Judge Grimball, Presiding Judge of the Fifth Circuit, upon affidavits presented to him, without any notice to the defendant-appellant and without any opportunity of a hearing being given to him to make any showing in rebuttal, issued an order revoking the suspended sentence as originally imposed, less good behavior allowance as provided by statute, said sentence to run from date of commitment after suspension has been revoked.

Under this order (afterwards conceded by the State to be illegal and void) the appellant was arrested on the same day the order was signed, and committed to the South Carolina State Penitentiary where he remained illegally restrained of his liberty until after the completion of the proceedings out of which this appeal stems, on March 6, 1951.

On the ___ day of February, 1951, upon the petition of the defendant-appellant, Honorable Steve C. Griffith, Presiding Judge of the Fifth Judicial Circuit, at Columbia, in said Circuit, issued a Writ of Habeas Corpus directed to Wyndham Manning. Superintendent of the State Penitentiary, ordering that he produce the body of defendant-appellant before him at the Richland County courtroom on March 6, 1951, and bring with him the reason for the detention of said defendant-appellant, and all pertinent matters in connection with his alleged detention.

The order granting the Writ of Habeas Corpus returnable at the time aforestated did not fix any hour, but it is obvious from the record that appellant was produced before Judge Griffith on the morning of said date, and representing Manning and the State were the Attorney General of the State of South Carolina, by an Assistant Attorney General, and the Solicitor of the Fifth Judicial Circuit. When the matter was called for a hearing, counsel for Manning in his official capacity, and for the State, made no written return, but conceded that the order of Judge Grimball of October 3, 1950, revoking the parole and suspended sentence of the appellant was void and of no effect in that no warrant issued by a probation officer had ever been served upon him, and he had been committed to the Penitentiary merely on an ex parte showing by affidavits that he had violated the terms of his parole, and without the appellant having been given the opportunity of a hearing on said charges. In other words, it was conceded that the defendant-appellant had been illegally arrested and confined in the State Penitentiary for several months, and continued to be restrained of his liberty.

Prior to and subsequent to the above admission by counsel representing Manning, as Superintendent of the Penitentiary, and the State, various and sundry statements of attempted explanations of the illegal confinement of the appellant were made by them, and of course counsel for the appellant was also present making statements in behalf of his client; and Judge Griffith was making inquiries and statements. The outgrowth was that Judge Griffith announced that the appellant claimed that his parole should not have been revoked, and he was going to give him a hearing to determine if it should have been. To this, counsel for appellant in effect consented, objecting only to the postponement of the hearing until that afternoon at 3 o'clock.

Thereupon, Judge Griffith signed an order which had theretofore been prepared by either the Solicitor of the Fifth Circuit or by an Assistant Attorney General of the State of South Carolina, omitting the preamble, reading as follows:

'It is Ordered----

'1. That the revocation of probation by Judge Grimball be and it is hereby set aside and declared of no force and effect.

'2. That the South Carolina Probation and Parole Board through its Probation Officer do issue a warrant for the arrest of the said Rhett Clough for violating the conditions of his probation and report the arrest and detention to this Court, submitting thereto a written report showing in what manner the Probationer violated his probation and that said Probation Officer bring the said Rhett Clough before this Court for a hearing on said matter at Chambers in Columbia, S. C., at 3:00 p. m. on March 6th, 1951, at which time the parties hereto shall fully present the evidence for and against the revocation of the probation.'

Following the signing of this order, A. J. Grygo, Probation Officer for that District, issued his arrest warrant charging that the appellant had violated the conditions A, B, C, and I, of his probationary sentence imposed by Judge Grimball at the September, 1950, term of the Court of General Sessions for Richland County in the following ways: 'By committing an assault unlawfully, upon the person of S. L. Howell with a large board; By being under the influence of intoxicants at the time of said assault; By also making an unprovoked assault upon the person of one Rufus Neeley; both assaults occurring on September 23, 1950; such conduct being in violation of advice and instructions of probation officer.'

Under this warrant, the defendant-appellant was arrested without ever having been released by the officers of the law, and at 3 o'clock P. M. on March 6, 1951, a hearing was held by Judge Griffith to determine if the appellant had violated the conditions on which his sentence had been suspended.

At the hearing before Judge Griffith in the afternoon of March 6, 1951, testimony was taken, at the conclusion of which and after argument of counsel, he signed an order, revoking the suspended sentence of the appellant, and in which he found as a fact that the appellant had violated a condition of his probation, to wit, 'committing an assault unlawfully, upon the person of S. L. Howell with a large board; on Sept. 23, 1950; such conduct being in violation of advice and instructions of the probation officer.' This order required the defendant-appellant to serve the term provided for in the sentence as originally imposed, less good behavior allowance as provided by statute, 'with defendant being given due credit for any portion of said sentence that has already been served in either the South Carolina Penitentiary or on a County Chaingang, said sentence to run from date of commitment, Heretofore on October 3rd, 1950.'

The Questions Involved in this appeal as stated by appellant (the respondent did not file printed brief) are as follows:

'I. Did the Order of the Honorable Steve C. Griffith ordering the release of appellant and directing the South Carolina Probation and Parole Board, through its Probation Officer, to issue a warrant for the arrest of appellant violate the terms of Section 1059, Code of Laws of South Carolina, 1942?

'II. Did the Honorable Steve C. Griffith, Presiding Judge, err in permitting the Solicitor to cross-examine the State's witnesses over objection of appellant?

'III. Was there any relevant, competent testimony to support the finding of the Presiding Judge that the appellant was at the place that he was alleged to have violated his probationary sentence?'

So much of Section 1059 of the Code of 1942 as is directly pertinent to the issue here, reads: 'No person who shall be delivered or set at large upon any writ of habeas corpus shall, at any time, be again imprisoned or committed for the same offense by any person or persons whatsoever, other than by the legal order and process of such court wherein he shall be bound by recognizance to appear, or other court having jurisdiction of the cause; * * *.'

Paragraph 4 of appellant's Petition for Writ of Habeas Corpus, and which was the concluding paragraph of the Petition, is as follows: 'That your petitioner was serving a suspended sentence of two (2) years and probation for three (3) years, when he was unjustly and without cause taken to and incarcerated in the State Penitentiary. That no hearing of any type has been held in which your petitioner participated. That the petitioner was unjustly and falsely accused in having participated in a fight, which fight being the alleged reason for the revocation of his probation. That your petitioner is informed and believes that he is entitled to show this Court that he is being falsely and unjustly detained.'

Judge Griffith construed this paragraph as a demand by the appellant for a hearing on the merits of the revocation of his suspended sentence, and this was concurred in by counsel for the appellant, the only objection made by said counsel being to the postponement of the hearing until 3 o'clock that afternoon. Such postponement for a few hours was granted so that the State and...