State v. Davis

• Citation: 70 S.E. 417,88 S.C. 204
• Parties: STATE v. DAVIS.
• Decision Date: 04 March 1911
• Court: United States State Supreme Court of South Carolina

70 S.E. 417

88 S.C. 204

STATE v. DAVIS.

Supreme Court of South Carolina

March 4, 1911

Rehearing Denied March 20, 1911.

Appeal from General Sessions Circuit Court of Laurens County; J. H Marion, Special Judge.

James Davis was convicted of murder, and he appeals. Affirmed.

W. B Knight, for appellant. R. A. Cooper, Sol., for the State.

JONES C.J.

At the summer term, 1910, of the court of general sessions for Laurens county, the defendants Claude Ferguson and James Davis were indicted for the murder of Ida Nelson on the 27th day of March, 1910. Davis was tried alone by his honor, J. H. Marion, presiding judge, and a jury at the special term of the court of general sessions for Laurens county October, 1910, upon said indictment, and was found guilty. Motion was made in arrest of judgment upon two grounds: (1) That the special judge was without jurisdiction to pass sentence, because the extra or special term of court at which defendant was tried, was ordered by the Governor of the state and not by the Chief Justice as required by law. (2) Because no legal notice or advertisement thereof was given by the clerk of court as required by law. The motion was overruled, and defendant was sentenced to be hanged on the 9th day of December, 1910. Defendant now renews his point that the court was illegally constituted and the sentence void. The facts upon which the contention is based are thus stated in the case: "That said special or extra term of court was ordered by his excellency, M. F. Ansel, Governor of the state of South Carolina, upon the petition of the Honorable R. A. Cooper, solicitor of the Eighth circuit, and not by the Chief Justice of the Supreme Court of the state of South Carolina. That no formal notice of the holding of said court was published by the clerk of the court in any newspaper, but the published notice was what appeared as a news item and not signed by any one."

The authority for the ordering of a special term and the appointment of a special judge is derived from article 5, § 6, of the Constitution and the statutes pursuant thereto. So much of article 5, § 6, of the Constitution as is relevant to the question is as follows: "The General Assembly shall provide by law for the temporary appointment of men learned in the law to hold either special or regular terms of the circuit courts whenever there may be necessity for such appointment."

The existing statutes on the subject are as follows:

2 Code 1902, § 28: "Special sessions of the courts of common pleas or general sessions may be held whenever so ordered either by the Chief Justice or by the circuit judge at the time holding the circuit court of the county for which the extra term may be ordered, of which extra term such notice shall be given as the Chief Justice or the circuit judge so ordering the same may direct. If such extra term of either or both the courts aforesaid be ordered by the Chief Justice he may order any one of the circuit judges to hold the same; but if such extra term be ordered by a circuit judge, as here inbefore provided, then such extra term shall be held only by the circuit judge so ordering the same, etc. The clerk of such court shall at least fifteen days before the commencement of such special session cause the time and place for holding the same to be notified, for at least two weeks successively, in one or more of the newspapers published nearest the place where the session is to be holden, etc. Said special session shall be held in pursuance of an order which shall be transmitted to the clerk of the court, and by him entered on the records of the court."

1 Code Laws, § 2743, provides: "Whenever any circuit judge, pending his assignment to hold the courts of any circuit, shall die, resign, be disabled by illness, or be absent from the state, or in case of a vacancy in the office of circuit judge of any circuit, or in case the Chief Justice or presiding associate justice of the Supreme Court shall order a special court of common pleas and general sessions, or common pleas or general sessions in any county in this state, upon a satisfactory showing that such special court is needed, the Chief Justice or presiding associate Justice may assign any other Circuit Judge disengaged to hold the courts of such circuits, or to fill any appointment made necessary by such vacancy, or to hold such special court; and in the event that there be no other circuit judge disengaged, then the Governor, upon the recommendation of the Supreme Court, or the Chief Justice thereof if the Supreme Court be not in session shall immediately commission as special judge such person learned in the law as shall be recommended to hold courts of such circuit or to hold such special court for that term only, etc."

Section 2744 provides: "Upon the application to the Governor by the solicitor of any circuit, stating that the public interest demands an extra term of the court of general sessions in any county of the state or upon the application of the majority of the members of the bar of any county, stating that the civil business demands an extra term of the court of common pleas, it shall be the duty of the Governor to appoint some man, learned in the law, and to be suggested by the Chief Justice of the Supreme Court of the state, to hold an extra term of said court or courts in said county, and notify the clerk of said court of said appointment."

Section 2745 provides: "When notified of such appointment the clerk of the said court shall notify the proper authorities, and the grand jury shall be summoned to attend, if it be a court of sessions, and a petit jury shall be drawn and summoned, if jury cases are to be tried, in the regular manner, for the purposes of said court, and as the same may be necessary, and the clerk shall notify said special judge of the time fixed for holding said special term of court."

The constitutionality of these statutes is not assailed in this case; but there is no room whatever to doubt the plenary power of the Legislature to provide for special terms of court and the appointment of special judges to preside over special or general terms, as has been done in the statutes quoted. The contention is that the power to order a special term is exclusively judicial, vested in the Chief Justice under section 28 first above quoted, and that section 2745 harmonizes with such view. It is quite true that under sections 28 and 2743 the Governor has no power whatever to commission a special judge not recommended by the Supreme Court, or the Chief Justice, if the Supreme Court be not in session. The Governor's duty to issue a commission to the appointee of the Supreme Court or Chief Justice is purely ministerial. He has no discretion whatever to ignore or set aside the court's recommendation and is bound to issue the commission, precisely as he would be bound to issue the commission to a judge elected by the General Assembly.

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