State v. Gossett

• Decision Date: 25 August 1921
• Docket Number: 10707.
• Parties: STATE v. GOSSETT.
• Court: South Carolina Supreme Court

108 S.E. 290

117 S.C. 76

STATE v. GOSSETT.

No. 10707.

Supreme Court of South Carolina

August 25, 1921

Appeal from General Sessions Circuit Court of Abbeville County Thos. S. Sease, Judge.

Kenneth Gossett was convicted of rape, and he appeals. Judgment reversed, and case remanded.

Bonham & Price, of Greenville, and M. L. Bonham, of Anderson, for appellant.

H. S Blackwell, Sol., of Laurens, George Bell Timmerman, of Lexington, and J. Howard Moore, of Abbeville, for the State.

COTHRAN J.

The defendant, Kenneth Gossett, was indicted, with his cousin John Gossett, at a special term of the court of general sessions for Abbeville county, upon the charge of rape. The crime was alleged to have been committed upon the person of a young woman of that county, near Abbeville, on March 14 1920. A true bill was rendered on April 5, 1920. The trial was entered upon, after the usual three days allowed, on April 8th. After the testimony was concluded the presiding judge directed a verdict of not guilty in favor of defendant John Gossett, and he was discharged. The jury rendered a verdict of guilty, with recommendation to mercy, as to the defendant Kenneth Gossett, and, after the refusal of a motion for a new trial, he was sentenced to imprisonment for 40 years. He has appealed to this court from said judgment.

Upon the threshold of this appeal we are confronted with the objection of the appellant to the legality of the court which condemned him. It is contended that section 3841, vol. 1, Code of Laws A. D. 1912, under which the special court was ordered and held, is violative of the Fourteenth Amendment to the Constitution of the United States, which provides:

"Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws"

--and of article 1, section 5, of the Constitution of South Carolina, which provides:

"Nor shall any person be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws."

A determination of the issue thus raised requires a statement of the proceedings leading up to the ordering of the special term and the appointment of the presiding judge, and a consideration of the constitutional and statute law which controls the matter.

On March 18, 1920, four days after the commission of the alleged crime, the solicitor of the circuit made application in writing to the Governor of the state, stating that the public interest demanded that a special term of the court of general sessions for Abbeville county be held, and petitioning that it be called to be held at Abbeville on April 5th. Acting upon that application and petition. the Governor issued an order, dated March 18th, which, after reciting the fact of said application and petition, directed that such special term be held as requested.

Thereupon the Chief Justice of this Court issued an order, which, after reciting the fact that the Governor had ordered the special term as stated, assigned the Honorable Thomas S. Sease, judge of the Seventh circuit, as a disengaged circuit judge, to hold the court. Accordingly Judge Sease appeared at the appointed time, opened the court, organized and charged the grand jury, and submitted to them the indictment against the defendants. The grand jury promptly returned a true bill against both of the defendants, and the other proceedings above narrated followed in due course.

Section 3841, vol. 1, Code of Laws A. D. 1912, reads thus:

"Upon the application to the Governor by the solicitor of any circuit, stating that the public interest demands an extra term of the court of general sessions in any county of the state, or upon the application of the majority of the members of the bar of any county, stating that the civil business demands an extra term of the court of common pleas, it shall be the duty of the Governor to appoint some man, learned in the law, and to be suggested by the Chief Justice of the Supreme Court of the state, to hold an extra term of said court or courts in said county, and notify the clerk of said court of said appointment."

Prior to the enactment of this statute the process for ordering special terms of court was as follows:

Section 33 of the Code of Civil Procedure provided (and still provides):

"Special sessions of the courts of common pleas or general sessions may be held whenever so ordered, either by the Chief Justice or by the circuit judge at the time holding the circuit court of the county for which the extra term may be ordered, of which extra term such notice shall be given as the Chief Justice or the circuit judge so ordering the same may direct. If such extra term of either or both the courts aforesaid be ordered by the Chief Justice, he may order any one of the Circuit Judges to hold the same; but if such extra term be ordered by a circuit judge, as hereinbefore provided, then such extra term shall be held only by the circuit judge so ordering the same."

Section 3840 of volume 1 is as follows:

"Whenever any circuit judge, pending his assignment to hold the courts of any circuit, shall die, resign, be disabled by illness, or be absent from the state, or in any case of a vacancy in the office of circuit judge of any circuit, or in case the Chief Justice or presiding Associate Justice of the Supreme Court shall order a special court of common pleas and general sessions, or common pleas or general sessions, in any county in this state, upon a satisfactory showing that such special court is needed, the Chief Justice or presiding Associate Justice may assign any other circuit judge disengaged to hold the courts of such circuits, or to fill any appointment made necessary by such vacancy, or to hold such special court; and in the event that there be no other circuit judge disengaged, then the Governor, upon the recommendation of the Supreme Court, or the Chief Justice thereof if the Supreme Court be not in session, shall immediately commission as special judge such person learned in the law as shall be recommended to hold courts of such circuit or to hold such special court for that term only."

The Constitution (article 5, § 6) provides:

"The General Assembly shall provide by law for the temporary appointment of men learned in the law to hold either special or regular terms of the circuit courts, whenever there may be necessity for such appointment."

From these provisions, it is apparent that at the time of the passage of the act of 1900 (section 3841) the following processes were ordained (and are still of force) with reference to the ordering of special terms:

(1) A special term might be ordered by the Chief Justice or presiding Associate Justice of the Supreme Court, upon a satisfactory showing that such court was needed.

(2) A special term might be ordered by the Circuit judge at the time holding the circuit court of the county for which the special term was to be ordered.

(3) When the special term should be ordered by the Chief Justice or by the presiding Associate Justice, he was authorized to assign any disengaged circuit judge to hold the court, or if there be none so disengaged, the Supreme Court, if in session, or the Chief Justice, if not, should recommend for appointment as special judge to hold the court some person learned in the law, whom the Governor should immediately commission as special judge for the purpose.

(4) When the special term should be ordered by the circuit judge at the time holding court, it could be held only by the circuit judge who may have ordered it.

Thus, under the legislation as it stood then, the power to order a special term was vested exclusively in the Chief Justice, the presiding Associate Justice, and the circuit judge holding court at the time for the county in which the special term was to be ordered. The persons authorized to preside as judge of such special court were limited to (1) a disengaged circuit judge, to be assigned by the Chief Justice or the presiding Associate Justice; (2) a person learned in the law, in the event that there should be no circuit judge disengaged, to be commissioned by the Governor as special judge, upon the recommendation of the Supreme Court, if in session, or of the Chief Justice, if not; (3) the circuit judge who may have ordered the court.

The power thus conferred by section 33 of the Civil Code and 3840 of the Code of Laws, is easily sustainable under the provisions of the Constitution (article 5, section 6) quoted above, as necessarily implied therein, or referable to the general legislative powers of the General Assembly, which are ample, except where limited by the Constitution.

It is not an absolute power, but is controlled by considerations which safeguard the rights and interests of those whose rights and interests will be determined by such tribunal. In the first place, the discretion to be exercised in ordering the special term is vested in the Chief Justice, the supreme custodian of the judicial interests of the state absolutely impartial, nonpartisan, unmoved by the clamor of the mob. "Far from the madding crowd's ignoble strife," equally solicitous that harm may not come from the "law's delays" or from impetuous haste; a calm discretion to be exercised. In the next place, it is a discretion to be exercised as a judicial function: "Upon a satisfactory showing that such special court is needed." The Chief Justice hears and determines.

There cannot be a question but that the power thus conferred is directed to be exercised in a fair, just, and reasonable manner, affording, in the judicial exercise of discretion by a supreme, impartial, judicial officer, a sure guaranty of due process of law and...