State v. Gaskins, 19919
| Decision Date | 04 December 1974 |
| Docket Number | No. 19919,19919 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Appellant, v. Ernest GASKINS, Respondent. |
Atty. Gen. Daniel R. McLeod, Deputy Atty. Gen. Joseph C. Coleman, Asst. Atty. Gen. Robert M. Ariail and Staff Atty. Richard P. Wilson, Columbia, for appellant.
Howell A. Wilson, Lake City, for respondent.
Ernest Gaskins, the respondent herein, was indicted at the 1973 April Term of the Court of General Sessions for Florence County and charged with driving a motor vehicle while under the influence of intoxicants, second offense, in violation of Section 46--343 of the Code. He was tried at the 1973 June Term of the Civil and Criminal Court for Florence County. The jury failed to agree and a mistrial was declared by the trial judge.
At the 1973 October Term of the Civil and Criminal Court for Florence County, the respondent did not appear and was tried in his absence, convicted, and a sealed sentence imposed.
The State instituted a proceeding to estreat the bond of the respondent, because of his failure to personally appear before the Civil and Criminal Court of Florence County for trial at the 1973 October Term thereof. It appears that on November 7, 1973, The Honorable W. T. McGowan, Jr., Judge of the Civil and Criminal Court of Florence County, issued his order refusing to estreat any part of the appearance bond and declaring the criminal charge against the respondent of operating a motor vehicle while under the influence of intoxicants dismissed, with prejudice. Such ruling was based upon a finding by the court that an assistant solicitor had stated at the conclusion of the first trial that the State did not intend to pursue the matter further. This finding was based upon the assistant solicitor's recollection at a later date. It is agreed that 'the indictment was not Nol prossed, nor was a notation to such effect made in the criminal docket book' of the court. The transcript of the record of the first trial contains no such statement or any other reference to a final disposition of the case. The trial judge, by an amendatory order, dated November 13, 1973, set aside the conviction of the respondent at the second trial, granted a new trial, and reaffirmed his previous order dismissing the charge, with prejudice.
The State prosecutes this appeal from the orders of the trial judge.
It is the contention of the State that the trial judge was in error in dismissing, with prejudice, the charge of driving a motor vehicle while under the influence of intoxicants, based upon an oral statement of the assistant solicitor to the effect that the prosecution would not be further pursued. A tangent question is whether such an oral off-record statement constituted a Nolle prosequi. It is also the contention of the State that the trial judge erred in considering an oral unsworn statement by the assistant solicitor, which did not appear by any court record, that the prosecution against the respondent had been terminated.
The Civil and Criminal Court for Florence County is a court of record. Section 15--611 of the Code. In this State we follow the rule that the acts of a court of record are known by its records alone and cannot be established by parol testimony. Long v. McMillan, 226 S.C. 598, 86 S.E.2d 477. Here, it is admitted that there was no notation of the disposition of this case entered upon or made a part of the records of the court. It follows that it was error on the part of...
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Connecticut's Most Famous Nolle
...formal entry on the record by the prosecuting officer by which he declares that he will not prosecute the case further. State v. Gaskins, 263 S.C. 343,210 S.E.2d 590,592. Commonly called "nol pros". Black's Law Dictionary 945 (5th ed. 1979). In the courthouses throughout Connecticut, when a......