State v. Duncan

• Decision Date: 21 December 1884
• Citation: 22 S.C. 87
• Parties: STATE v. DUNCAN.
• Court: South Carolina Supreme Court

22 S.C. 87

STATE v. DUNCAN.

Supreme Court of South Carolina.

December 21, 1884

From an order made by two trial justices discharging a prisoner under a habeas corpus proceeding had before them, an appeal cannot be taken direct to the Supreme Court. MCGOWAN A. J., dissenting .

This was an appeal by the state direct to this court from an order made by two trial justices of Spartanburg County, discharging the defendant, Worth J. Duncan, who had been brought before them under a writ of habeas corpus , he being in the custody of the sheriff, charged with breach of trust with fraudulent intent. The order of discharge bears date February 2, 1884. The only question considered by the court not having been raised by exception or in argument, a fuller statement of the case is unnecessary.

Mr. Solicitor Duncan , for appellant.

Mr. J. S. R. Thomson , contra.

OPINION

MR JUSTICE MCIVER.

This is an appeal on behalf of the state from the order of two trial justices discharging the defendant without day, who had been brought before them under the provisions of the habeas corpus act. It appeared from the return to the writ that the defendant was in custody under a warrant of commitment for breach of trust with a fraudulent intent.

The preliminary question presented in this case is whether this court has jurisdiction to hear this appeal. The constitution (art. IV., § 4) provides as follows: " The Supreme Court shall have appellate jurisdiction only in cases of chancery, and shall constitute a court for the correction of errors at law, under such regulations as the general assembly may by law prescribe." Now, as it is manifest that this is not a " case of chancery," and as the constitution does not confer jurisdiction upon this court for the correction of errors at law in general terms, but only " under such regulations as the general assembly may by law prescribe," it is necessary to ascertain what regulations the general assembly has by law prescribed, under which this court has power to correct errors at law. These regulations are to be found in section 11 of the code of 1882, which provides as follows: " The Supreme Court shall have exclusive jurisdiction to review upon appeal: 1. Any intermediate judgment, order, or decree, involving the merits in actions commenced in the Courts of Common Pleas and General Sessions, brought there by original process, or removed there from any inferior courts or jurisdiction, and final judgments in such actions," & c., the remainder of the section being immaterial to the present inquiry.

Now, as these regulations provide for an appeal to the Supreme Court only in actions " commenced in the Court of Common Pleas and General Sessions, brought there by original process, or removed there from any inferior courts or jurisdiction," and as the order from which this appeal was taken was not made in any action or proceeding originally commenced, either in the Court of Common Pleas or General Sessions, and was not removed there from any inferior court or jurisdiction, it would seem to be clear that this court has not been invested with power to hear such appeal.

But again, the code, in section 358, expressly declares that " when a judgment is rendered by a trial justice's court, by the county commissioners, or any other inferior court or jurisdiction, save the probate court heretofore provided for in this Code of Procedure, the appeal shall be to the Circuit Court of the county wherein the judgment was rendered." While it may possibly admit of some doubt whether two trial justices in granting a writ of habeas corpus could be properly considered as an inferior court, yet it is quite clear that they are exercising inferior juris diction to that conferred upon the judges of the Court of Common Pleas and General Sessions, or justices of the Supreme Court; for while these judges and justices are authorized to grant the writ of habeas corpus in any case, whether the charge be of felony or otherwise, by virtue of their common law powers, and of the provisions of section 2093, so far as the justices of the Supreme Court are concerned; and even under the habeas corpus act may grant the writ where a person is in confinement under a charge of felony not punishable by death-two trial justices cannot grant the writ in any case of felony, the punishment of which is death, or imprisonment for life . See section 2335 of general statutes. So that it is manifest that they are only invested with a limited or inferior jurisdiction ; and being an inferior jurisdiction, an appeal from any order or judgment entered by them must be to the Circuit Court, under the express terms of section 358 of the code above quoted.

It may be urged that the last clause of the habeas corpus act, section 2340 of the general statutes, provides that " an appeal from all final decisions rendered on applications for writs of habeas corpus shall be allowed as is provided by law in civil actions," and that as the power to grant such writs is expressly granted to two trial justices this section secures the right of appeal in this case. There is no doubt that the section does secure the right of appeal, but the question remains as to what court such appeal shall be taken, to the Supreme Court or to the Circuit Court. It will be observed that the section just quoted only secures the right of appeal in general terms without declaring in specific terms the court to which such appeal shall be taken. But it does not leave that matter in doubt, for it declares that...