State v. Funderburk

• Decision Date: 13 January 1925
• Docket Number: (No. 11659.)
• Court: South Carolina Supreme Court
• Parties: STATE v. FUNDERBURK.

126 S.E. 140

STATE

v.FUNDERBURK.

(No. 11659.)

Supreme Court of South Carolina.

Jan. 13, 1925.

Du Rant, Special Judge, dissenting.

Appeal from General Sessions Circuit Court of Darlington County; E. C. Dennis and R. W. Memminger, Judges.

William Funderburk pleaded guilty in magistrate's court to charge of carrying concealed weapon, and from an order of the circuit court refusing to dismiss his appeal thereto, and from an order putting in the alternative the sentence imposed by the magistrate, the State appeals. Affirmed.

J. Munroe Spears, Sol., of Darlington, and F. A. Miller, of Hartsville, for the State.

T. C. Cork, of Darlington, and C. T. Graydon, of Columbia, for respondent.

FRASER, J. The case contains the following "statement":

"This appeal is from an order of Hon. E. C. Dennis, refusing to dismiss the appeal herein, and also from an order of Hon. R. W. Memminger, putting-in the alternative the sentence imposed by the Magistrate on the defendant. On September 27, 1923, the defendant pleaded guilty in the magistrate's court to the charge of carrying concealed on his person an unlawful weapon, to wit, a 45-caliber pistol, in violation of the statute in such case made and provided, and was thereupon sentenced to serve a term of 30 days on the public works of Darlington county. The defendant having pleaded guilty the magistrate refused to fix an appeal bond, and such proceedings were thereafter had by way of habeas corpus as resulted in the allowance of an appeal bond. Judge Dennis overruled the state's contention that having pleaded guilty, and the sentence being such as was allowed by law, the defendant could not appeal, holding that the right of appeal still existed, and ordering the magistrate to make return and accept bail. The case came on for hearing before Judge Memminger, Presiding Judge, at Darlington, in February, 1924, and without going into the facts or considering any papers used at other hearings, Judge Memminger held that the statute [section 19, Code of Criminal Procedure; 1 Code of Laws of South Carolina, 1922, p. 411], empowering magistrates to impose any sentence within the limits therein mentioned, singly or in the alternative, was unconstitutional, and, accordingly, modified the sentence by imposing imprisonment for a period of 30 days or a fine of $100. Due notice of intention to appeal was given from both the aforesaid orders and this appeal questions the correctness of said rulings on grounds appearing in the moving papers hereinafter set out."

In the argument for the state, the appellant, we find a statement of the questions raised and they will be stated and considered as made by the appellant.

I. Was personal service of the notice and grounds of appeal necessary? The right of appeal is guaranteed by the Constitution, art. 5, § 23:

"In all cases tried by them, the right of appeal shall be secured under such rules and regulations as may be provided by law.

The respondent has therefore a constitutional right of appeal. On the civil side of the court it is expressly provided that the notice of appeal may be served by mail. See section 640. If the Legislature intended to restrict the right of appeal in criminal cases, it could have said so. This service by mail is sufficient, in as much as it was actually received within due time.

II. Was notice of intention to appeal the notice of appeal required by the statute? These terms are used in the statute to denote the same thing. In appeals from magistrates' courts it is called "notice of appeal"; In appeals to this court, the term is "notice of intention to appeal."

III. Was respondent estopped by his plea of guilty to appeal? The appeal was from the sentence. The sentence comes after the plea of guilty. This point cannot be sustained.

IV. May a magistrate impose sentence singly and not in the alternative? This raises a constitutional question that is not necessary to the determination of the case, and therefore should not be decided in this case.

It is provided in Code of Criminal Procedure, § 119:

"(119) § 6. Appeal Heard Without Examination of Witnesses.—The said appeal shall be heard by the...