State v. Holliday, 19121

• Citation: 177 S.E.2d 541,255 S.C. 142
• Decision Date: 06 November 1970
• Docket Number: No. 19121,19121
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Appellant, v. W. H. HOLLIDAY, Respondent.

Page 541

177 S.E.2d 541

255 S.C. 142

The STATE, Appellant, v. W. H. HOLLIDAY, Respondent.

No. 19121.

Supreme Court of South Carolina.

Nov. 6, 1970.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Michael W. Tighe, Columbia, and G. Werber Bryan and Howard P. King, Sumter, for appellant.

Weinberg & Weinberg, Sumter, for respondent.

LEWIS, Justice.

Respondent, W. H. Holliday, was convicted in magistrate's court for driving a motor vehicle while under the influence of intoxicants in violation of Section 46--343 of the 1962 Code of Laws. He was initially taken into custody for such violation under an unlawful arrest. Upon appeal to the circuit court, the conviction was reversed solely upon the legal ground that such unlawful arrest vitiated the subsequent conviction. The State has appealed, contending that the lower court was in error and that the judgment of the magistrate's court should be reinstated.

Before reaching the basic issue in the appeal, we must first dispose of respondent's contention that the State has no right of appeal from the judgment reversing his conviction.

Apparently, under the common law as adopted in this country, the State had no right in a criminal case to appeal from a judgment in favor of the defendant. United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445; 24 C.J.S. Criminal Law § 1659.

While a limited right of appeal in criminal cases has been conferred upon the State by statute in a number of jurisdictions, the extent of the right of the prosecution to appeal in this jurisdiction has been defined by our judicial decisions.

Based primarily upon the double jeopardy provisions of the Constitution, State v. Gathers, 15 S.C. 370, we have long recognized that the State has no right of appeal from a judgment of Acquittal in a criminal case, State v. Lynn, 120 S.C. 258, 113 S.E. 74; unless the verdict of acquittal was procured by the accused through fraud or collusion, State v. Johnson, 248 S.C. 153, 149 S.E.2d 348.

The following statement of the principle from 24 C.J.S. Criminal Law § 1663, was quoted with approval in State v. Rogers, 198 S.C. 273, 17 S.E.2d 563:

'Generally, in those jurisdictions where the common-law rule permitting a former acquittal to be pleaded as an absolute bar to a subsequent prosecution prevails, and in those jurisdictions where the Constitution provides that no one shall be twice put in jeopardy for the same offense, it is held that no writ of error, appeal, or other proceeding lies on behalf of the state to review or to set aside a verdict or a judgment of acquittal in a criminal case, although there may have been error committed by the court, or a perverse finding by the jury.'

However, since double jeopardy is not involved in such situations, we have held that the State may appeal from an order quashing an indictment, State v. Young, 30 S.C. 399, 9 S.E. 355; State v. Bouknight, 55 S.C. 353, 33 S.E. 451; or from a judgment reversing or setting aside a conviction on purely legal grounds, State v. Long, 66 S.C. 398, 44 S.E. 960; State v. Johnson, 76 S.C. 39, 56 S.E. 544; State v. DesChamps, 126 S.C. 416, 120 S.E. 491.

An informative article on the subject of State appeals in criminal prosecutions may be found in 3 S.C.L.Q. 154.

The order under appeal was not concerned with the weight or sufficiency of the evidence, but was based upon the wholly legal ground that the unlawful arrest, within itself, vitiated the conviction. Since the conviction was reversed on a purely legal ground, the State had the right to appeal from such judgment.

The parties agree that the respondent was arrested without a warrant on February 3, 1970 under circumstances which made such arrest unlawful. The basic issue in the appeal concerns the effect of the unlawful arrest upon the subsequent conviction of respondent.

The trial proceedings are not included in the record, but the parties have stipulated the facts which determine the scope of the present inquiry. The only reference in the present record to the issue raised in the lower court relative to the unlawful...