State v. Germany
| Decision Date | 27 December 1949 |
| Docket Number | 16298. |
| Citation | 57 S.E.2d 165,216 S.C. 182 |
| Parties | STATE v. GERMANY. |
| Court | South Carolina Supreme Court |
J. A. Hutto, Columbia, F. Ehrlich Thomson, Columbia, for appellant.
John M Daniel, Attorney General, T. C. Callison and R. Hoke Robinson, Assistant Attorneys General, for respondent.
This is an appeal from an order discharging a writ of habeas corpus and remanding appellant to the custody of the officials of the South Carolina State Penitentiary. The question is whether a sentence imposed upon him for escaping from the Richland County chain gang is in excess of the maximum allowed by law.
On January 15 1948, appellant was convicted in the Court of General Sessions for Richland County of the crime of assault and battery of a high and aggravated nature and was sentenced by the presiding judge, Honorable J. Henry Johnson, to 'be confined at hard labor upon the public works of Richland County for a term of five (5) years, or for a like term in the State Penitentiary; provided that upon the service of nine (9) months, the balance of the aforesaid sentence be and the same is hereby suspended and that the said defendant is hereby placed on probation for a period of five (5) years, * * *'.
Appellant commenced the service of the unsuspended portion of his sentence on June 14, 1948. On August 11, 1948, he escaped from the Richland County chain gang and voluntarily returned the following day. At the September, 1948, term of the Court of General Sessions for Richland County, he was tried and convicted of (1) escaping from prison, and (2) using an automobile without the owner's consent. The presiding judge, Honorable J. Robert Martin, Jr., imposed a sentence of eighteen months on the first count (escaping from prison) and six months on the second count, and directed that the two sentences should run concurrently. There was no appeal from these sentences.
On June 15, 1949 appellant filed a petition for a writ of habeas corpus in which he asserted that he was unlawfully detained in the State Penitentiary and asked that he be immediately released upon the ground that the sentence of eighteen months imposed by Judge Martin for escaping from prison exceeded the maximum punishment which could have been imposed under the facts presented. In the event the above relief was denied, he asked that the sentence of eighteen months be reduced to nine months. A return was duly filed by the Attorney General in behalf of the Superintendent of the State Penitentiary. The matter was heard by Honorable G. Duncan Bellinger, Resident Judge of the Fifth Circuit, who held that the sentence of eighteen months was valid and dismissed the petition.
The sentence claimed to be invalid was imposed under Act No. 147 of the 1947 acts of the General Assembly, 45 St. at L. 193, which is as follows:
The sole question for determination is what was appellant's 'original sentence' within the meaning of the foregoing statute. He contends that it was nine months, the unsuspended portion of the sentence imposed by Judge Johnson. Respondent asserts that appellant's 'original sentence' was five years. If so, the sentence imposed by Judge Martin was within the maximum prescribed by the statute. In a well considered order, Judge Bellinger reached the following conclusion: 'I am convinced that the words 'original sentence' in the escape law mean the whole of a sentence, including the unsuspended portion thereof, and that the 'original sentence' of petitioner (appellant) was five years.' We are in accord with this conclusion.
Section 1038-1 of the 1942 Code, which is the first section of the South Carolina Probation and Parole Act, is as follows: 'After conviction or plea for any offense, except a crime punishable by death or life imprisonment, the judge of any court of record with criminal jurisdiction at the time of sentence may suspend the imposition or the execution of a sentence and place the defendant on probation or may impose a fine and also place the defendant in probation.' In construing this Act, it was held in Moore v. Patterson, 203 S.C. 90, 26 S.E.2d 319, 147 A.L.R. 653, that in imposing a sentence of imprisonment on the chain gang or in the State Penitentiary, the Court may provide for its suspension and the release of the defendant on probation after service of...
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