State v. Hunter

• Decision Date: 13 February 1908
• Citation: 60 S.E. 226,79 S.C. 91
• Parties: STATE v. HUNTER.
• Court: South Carolina Supreme Court

60 S.E. 226

79 S.C. 91

STATE v. HUNTER.

Supreme Court of South Carolina

February 13, 1908

Appeal from General Sessions Circuit Court of Laurens County; Ernest Gary, Judge.

G. Wash Hunter was indicted for crime, and, from an order changing the venue on motion of the Solicitor, he appeals. Affirmed.

W. R Richey, O. L. Schumpert, and Cole L. Blease, for appellant.

R. A Cooper and Ferguson & Featherstone, for the State.

GARY A. J.

This is an appeal from an order changing the venue from Laurens to Greenwood county on motion of the Solicitor. At the time fixed for hearing the motion the defendant's attorneys interposed the following objections: "The defendant, G Wash Hunter, defendant named above, by his counsel, appears specially herein for the following purposes: (1) The said defendant objects to the jurisdiction of his honor, Ernest Gary, circuit judge, to hear said motion because the law requires the application to be made to the judge sitting in regular term, and the business of the fall term of the court of general sessions for Laurens county having been completed on Friday, September 20, 1907, the said court was then adjourned by operation of law, and his honor now has no jurisdiction to hear said motion. (2) Because the law requires 10 days' notice of the application to change venue to be given to the adverse party, and in this case the defendant has not had 10 days' notice, the notice having been served on September 19, 1907. It being respectfully submitted that the act, approved February 22, 1905, providing for four days' notice, is unconstitutional, in that the proposed amendment by said act is not expressed in the title of the act." We proceed to the consideration of the first objection.

Sections 27 and 27a of the Code of Civil Procedure of 1902 are as follows: Section 27: "Should the business before the court of general sessions, at any term not be completed, on the arrival of the day fixed by law, for the holding of the court of common pleas for said county, the judge presiding may, in his discretion, adjourn said court of common pleas, until the business of the court of general sessions shall have been concluded. But the provisions of this section shall not apply to the courts held in the county of Newberry." Section 27a: "Should the business before the court of general sessions, at any term in any circuit in this state be completed or suspended, before or after the day fixed by law, for the opening of the court of common pleas for any county in the state, the presiding judge may, in his discretion, before the completion of the criminal business, open the court of common pleas for the trial of all causes, or the dispatch of all business, that may be pending in said court, in which the parties interested are ready to be heard." In the order changing the venue, his honor finds the facts as follows: " The Court of Sessions as matter of fact has been kept open by request, and it has transacted other business, passed sentences, granted bail, and heard applications for new trials, and it has, as matter of fact, been kept open, if it could be kept open by law, and I do not see, under our present system, how it could be kept open otherwise." The case of McKellar v. Parker, 29 S.C. 237, 7 S.E. 295, decides that the court of common pleas can be opened and adjourned, without adjourning the court of general sessions, when the business before the latter court has been completed; thus showing that the two courts may be open at the same time. The case of Hardin v. Trimmier, 30 S.C. 391, 9 S.E. 342, rules that, when the day fixed by statute arrives for convening the court of common pleas, no formal ceremony is necessary for opening it, but that it is opened by operation of law, whenever the judge appears on the day appointed, attended by the proper officials, even thought the judge may not then, owing to the unfinished business of the court of general sessions, be able to proceed immediately with the business of the court of common pleas. If both courts could not stand open at the same time, it would be necessary to reconvene the court of general sessions after the court of common pleas had been opened, in order to complete the unfinished business of the session court, when no such provision is made in the statute. Such a construction would defeat the salutary provisions of the statute. We do not, however, regard this an open question, as it was decided in the recent case of State v. Hasty, 76 S.C. 105, 56 S.E. 669, that a criminal case begun during the week assigned for holding the court of general sessions might be continued and ended in the following week assigned for the trial of cases in the court of common pleas. The exceptions raising this question are therefore overruled.

We will consider, next, the second ground upon which the defendant relied. The act of 1905 (24 St. at Large, p. 845) is as follows:

"An act to amend section 2735, of volume 1, Code of Laws of 1902, relating to

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