State v. Howell, 16541

• Decision Date: 11 September 1951
• Docket Number: No. 16541,16541
• Court: South Carolina Supreme Court
• Parties: STATE v. HOWELL.

Page 701

66 S.E.2d 701

220 S.C. 178

STATE v. HOWELL.

No. 16541.

Supreme Court of South Carolina.

Sept. 11, 1951.

J. D. Parler, St. Georgia, A. R. McGowan, Charleston, for appellant.

Randolph Murdaugh, Sol., Hampton, T. C. Callison, Atty. Gen., William A. Dallis, Asst. Atty. Gen., for respondent.

OXNER, Justice.

This is an appeal from an order overruling a plea of autrefois acquit interposed by appellant to an indictment charging him with murder. The testimony, records and various proceedings had in the case disclose the following facts:

On the afternoon of February 10, 1949, appellant shot and fatally wounded one David Lee Ferdell at or near the bridge over the Edisto River on U. S. Highway No. 15. While it is conceded that Ferdell died in Colleton County, there is a considerable dispute as to whether he was shot in that county or in Dorchester County.

Appellant's version of the homicide is that upon arriving at his cottage located about 350 yards below the bridge on the Dorchester side of the river, he saw two men in a boat carrying away his outboard motor; that after securing a .22 rifle from his house, he endeavored to apprehend them; that one of the men escaped but he seized the other, who later proved to be Ferdell, intending to take him to a nearby village for the purpose of telephoning the officers; that to this end, he marched Ferdell through the swamp to the highway, closely following with his rifle; that upon reaching the highway on the Dorchester side of the river, Ferdell turned and assaulted him with a hatchet, whereupon he shot him in self-defense; and that after the shooting, Ferdell ran across the bridge to the Colleton side and was later found dead in the woods nearby.

Shortly after the occurrence, officers from both Dorchester and Colleton counties arrived at the scene. Two deputy sheriffs from Dorchester County assert that they arrived first and arrested appellant after he stated that the shooting occurred in Dorchester County. The Sheriff of Colleton County and one of his deputies state that when they arrived appellant was not in the custody of anyone and after a brief investigation, they arrested him. The deputy sheriffs from Dorchester County claimed that they were entitled to the prisoner but the Sheriff of Colleton County refused to surrender him and took appellant to Walterboro where he was lodged in jail. The next morning, February 11, 1949, the Coroner held an inquest resulting in the issuance of a warrant by a Colleton County magistrate charging appellant with the murder of Ferdell. Later during the day a Justice of this Court admitted him to bail in the sum of $3500.00, and proper bond in this amount was promptly filed, conditioned upon his appearance at the next term of the Court of General Sessions for Colleton County to answer any bill of indictment preferred against him.

Notwithstanding the foregoing proceedings had in Colleton County, on the day of the homicide, one of the deputy sheriffs of Dorchester County applied for and procured from a magistrate of that county a warrant charging appellant with the murder of Ferdell. On the following day, February 11th, a bond for $2000.00 was filed by appellant in Dorchester County, conditioned upon his appearance at the next term of court of that county to answer any bill of indictment preferred against him. However, there is no record in Dorchester County of any order authorizing this bond.

At the April, 1949, term of the Court of General Sessions of Colleton County, appellant was indicted for the murder of Ferdell. The case was continued by the presiding Judge, the late lamented Judge Gaston, on motion of appellant. It was again continued on appellant's motion at the June, 1949, term by Judge Johnson and was likewise continued at the September, 1949, term of court which was presided over by Judge Moss.

Shortly prior to the April, 1950, term of the Court of General Sessions for Colleton County, the solicitor of the Fourteenth Circuit, Honorable Randolph Murdaugh, notified counsel for appellant that he was very anxious to try the case at the approaching term of court but if this could not be done, he at least wanted appellant present so that he might be arraigned. When the court convened on April 3, 1950, appellant failed to appear and a bench warrant was issued on the following day.

The Court of General Sessions for Dorchester County also convened on April 3, 1950. Dorchester and Colleton counties are in different judicial circuits, Dorchester being in the First Circuit and Colleton in the Fourteenth. Honorable Julian S. Wolfe is solicitor of the First Circuit. Shortly after the convening of the Dorchester County court, Solicitor Wolfe presented to the grand jury a bill of indictment charging appellant with the murder of Ferdell, in which it was alleged that the shooting occurred in Dorchester County. A true bill was promptly returned by the grand jury. The case was later tried during the same day and at the conclusion of the testimony, Judge Moss, the presiding Judge, on motion of appellant, directed a verdict of not guilty upon the grounds that the undisputed testimony showed (1) that appellant killed deceased in self-defense and (2) that appellant, having lawfully arrested the deceased for the commission of a felony, was justified in shooting him to prevent his escape.

The record of the trial in Dorchester County does not show that any question was raised as to the pendency of the indictment against appellant in Colleton County. In an affidavit subsequently made by the Sheriff of Dorchester County, he stated that he was not informed of any plan to try appellant in Dorchester County until advised to that effect by the solicitor on Thursday preceding the convening of court, and that he took no part in the trial of the case. He further stated that he attended the inquest in Colleton County, from which he concluded 'that the alleged crime had been committed in Colleton County and was a Colleton County matter' and since then had 'had nothing further to do with the case.' The associate counsel for appellant at Walterboro stated in his affidavit that he was not advised of any intention to try appellant in Dorchester County and knew nothing of that trial until he saw an account of it in the newspapers on the following day. Solicitor Murdaugh stated in an affidavit that he was never given any notice of the proceedings in Dorchester County, knew nothing of the contemplated trial of appellant there, and was surprised to learn on the day after the trial that appellant had been indicted and acquitted. No explanation is given in the record as to why, without consultation with Solicitor Murdaugh, appellant was indicted and tried in Dorchester County after he had been indicted approximately one year previously in Colleton County and the case continued in that county on motion of appellant for three consecutive terms.

On April 25, 1950, appellant was arrested and lodged in jail at Walterboro under the bench warrant issued by the Court of General Sessions of Colleton County on April 4, 1950. He immediately petitioned this Court for a writ of habeas corpus. These proceedings were heard by us at the May, 1950, term and in June an order was filed in which it was held that the bench warrant was properly issued and that appellant was not unlawfully restrained of his liberty. We there stated that the merits of the plea of autrefois acquit were not properly before us and that it was appellant's 'duty to have appeared at the Court of General Sessions for Colleton County and there interposed any plea or defense that he desired to offer.' We admitted him, however, to bail in the sum of $3500.00.

Subsequently a charge of venue was granted from Colleton to Beaufort County. When the case was called for trial, appellant moved to quash the indictment upon the ground that he had been acquitted upon the charge contained therein. Trial by jury of any disputed issues of fact was waived and counsel agreed that the plea of autrefois acquit should be heard and determined upon its merits by Judge Lewis, who was then presiding in Beaufort County. The testimony taken at the Coroner's inquest, the transcript of the trial had in Dorchester County, the record of the habeas corpus proceedings in this court, and the proceedings had in Colleton County were all introduced in evidence and in addition some testimony was taken. Thereafter in an order filed on December 18, 1950, the plea of autrefois acquit was overruled. Judge Lewis held that assuming that the fatal blows were inflicted in Dorchester County, the Court of General Sessions of Colleton County had jurisdiction; that since that court first acquired jurisdiction of the case, it retained same to the exclusion of any other court; and that the Court of General Sessions for Dorchester County was wholly without jurisdiction to try the case, and 'its attempt to do so was a nullity.'

The question presented for decision is whether the Court erred in overruling appellant's plea of autrefois acquit. The elements necessary to sustain such plea are succintly stated in State v. Bilton, 156 S.C. 324, 153 S.E. 269. The only requirement therein stated which need be considered on this appeal is whether appellant was tried and acquitted by a court of competent jurisdiction, for it is stated in the brief of the State: 'From the record in this case, it is shown that the sole issue under the plea of former acquittal concerns the jurisdiction of the court of Dorchester County to try the defendant for the particular offense, all other elements of the plea having been shown. If the court in Dorchester County had jurisdiction, then the plea of former jeopardy must be sustained; if not, the plea of former jeopardy must fall.' The State also expressly disclaims in its brief any contention 'that there was fraud or collusion in this case.' So that in determining whether the plea of autrefois acquit should be sustained, it...