State v. Fennell
Decision Date | 30 October 1974 |
Docket Number | No. 19901,19901 |
Citation | 263 S.C. 216,209 S.E.2d 433 |
Parties | The STATE, Appellant, v. Fannie Dubose FENNELL, Respondent. |
Court | South Carolina Supreme Court |
Atty. Gen. Daniel R. McLeod, Deputy Atty. Gen. Joseph C. Coleman, Asst. Atty. Gen. Robert M. Ariail, and Staff Atty. Wade S. Kolb, Jr., Columbia, for appellant.
Mays, Bishop & Hughston, Greenwood, for respondent.
On May 13, 1973 the respondent, Fannie Dubose Fennell, was charged by the State Highway Patrol with driving a motor vehicle while under the influence of intoxicating liquor. She was served with a copy of a uniform traffic ticket requiring her to appear before Magistrate R. E. Wingard of Ninety Six, Greenwood County, South Carolina. She was tried before the magistrate and a jury on July 10, 1973, but the jury being unable to agree, a mistrial was ordered. The magistrate, thereafter, on the same day accepted from the respondent a plea of guilty of reckless driving, in lieu of proceeding further with respect to the offense with which she was charged. No warrant, uniform traffic ticket or other process had been issued charging respondent with the offense of reckless driving.
Still later on the same day, July 10, 1973, the magistrate wrote the respondent a letter informing her that he had been in error in accepting a guilty plea to reckless driving and further informing her that the charge of driving under the influence of intoxicants would be set for retrial. The respondent appealed from such action by the magistrate and the circuit court issued its order under date of January 12, 1974, holding that the magistrate was empowered to accept a guilty plea to the charge of reckless driving and that the State could not further prosecute the offense of driving under the influence of intoxicants. From such order the State appeals.
Code section 46--343 makes it unlawful for 'any person who is under the influence of intoxicating liquors * * * to drive any vehicle within this State.' Code section 46--342 provides that 'Any person who drives any vehicle in such a manner as to indicate either a wilful or wanton disregard for the safety of persons property is guilty of reckless driving.'
The essential question raised by the appeal is whether or not the lesser offense of 'reckless driving' is included within the greater offense of driving under the influence of intoxicating liquors, the only offense with which respondent was properly charged. The general rule is that an indictment will sustain a conviction for a lesser offense included within a greater offense charged. See cases collected in West's South Carolina Digest, Indictment and Information, k189. This rule is elaborated upon in 42 C.J.S. Indictments and Informations § 286, where it is said,
The rule is also elaborated upon in 41 Am.Jur. (2d), 1074, Indictment and Information, section 313. We quote therefrom as follows.
Numerous authorities have held that the a lesser offense included within the statutory a lesser offenses included within the statutory offense of driving under the influence, but...
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...rule is that an indictment will sustain a conviction for a lesser offense included within a greater offense charged. State v. Fennell, 263 S.C. 216, 209 S.E.2d 433 (1974). The test for determining whether a crime is a lesser included offense of that charged in the indictment is whether the ......
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