State v. Funderburk, 19480
| Decision Date | 11 September 1972 |
| Docket Number | No. 19480,19480 |
| Citation | 191 S.E.2d 520,259 S.C. 256 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Hurley Alfred FUNDERBURK, Jr., Appellant. |
Edward M. Leppard, of Leppard & Leppard, Chesterfield, for appellant.
Solicitor Marion H. Kinon, Dillon, for respondent.
The defendant Funderburk appeals from his conviction on a charge of grand larceny at the May 1971 term of the Court of General Sessions for Chesterfield County. On May 4, 1970, he was arrested on two warrants issued by Magistrate Horton, charging him with the offenses of grand larceny and receiving stolen goods. He was thereafter released on bail and on May 8th retained counsel who immediately served and filed with the magistrate a written demand for a preliminary hearing, which hearing was not held until October 2, 1970. In the meantime, the May term of court had commenced on May 18, 1970, and on that date an indictment based upon the aforesaid warrants was submitted to the grand jury and a true bill returned. The defendant was tried upon said indictment at a trial which commenced on October 12, 1970, and ended in a mistrial. Prior thereto, the defendant made a motion to dismiss and/or quash the indictment on the ground, inter alia, that under the facts and provisions of Code Section 43--232 the Court of General Sessions and the grand jury had no jurisdiction of the case at the time of the indictment and that such was accordingly void. Judge Baker, the presiding judge, denied the motion and ruled that 'This court now has jurisdiction and it can be tried even though the indictment was returned at the May term and the preliminary hearing was held thereafter.'
The cause came on again for trial on February 1, 1971, before Judge Weatherford and a jury and again resulted in a mistrial. Prior thereto defendant renewed his motion to quash which had been denied by Judge Baker. Judge Weatherford denied such motion, inter alia, for the reason that there had been no appeal from Judge Baker's holding, stating,
The case came on for trial again at the May 1971 term before Judge Spruill with the motion to quash again being renewed. Again the motion was denied, Judge Spruill pointing out the absence of any appeal or notice of intention to appeal from Judge Baker's ruling and saying, 'I am inclined to think that is the law of the case and I deny your motion on that ground.' The trial which ensued resulted in a conviction of the defendant on the grand larceny charge.
Section 43--232 of the Code reads as follows:
'When and how defendant may demand preliminary examination.
It will be noted that the demand for a preliminary hearing in this case was noticed exactly ten days before the convening of the next term of the Court of General Sessions. The record does not reflect any contention on the part of the State below that the demand for a preliminary hearing was not timely noticed and for the purpose of this appeal we treat the demand as having been timely made. Such being the case, it is quite clear that under the literal terms of the statute the Court of General Sessions had no jurisdiction of the case at the time of the indictment, to-wit: May 18, 1970. State v. Flintroy, 178 S.C....
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State v. Dudley
...in this State."). Because the circuit court lacked jurisdiction, we vacate both of Dudley's convictions.7 See State v. Funderburk, 259 S.C. 256, 261, 191 S.E.2d 520, 522 (1972) (stating "the acts of a court with respect to a matter as to which it has no jurisdiction are CONCLUSION South Car......
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