State v. Johnson

• Decision Date: 05 July 1898
• Citation: 30 S.E. 592,52 S.C. 505
• Parties: STATE v. JOHNSON.
• Court: South Carolina Supreme Court

30 S.E. 592

52 S.C. 505

STATE v. JOHNSON.

Supreme Court of South Carolina

July 5, 1898

Appeal from general sessions circuit court of Laurens county; W. C Benet, Judge.

John Johnson was convicted of murder, and appeals.Affirmed.

N. B Dial and Ferguson & Featherstone, for appellant.

T. S Sease, for the State.

JONES J.

At the October term, 1897, of the court of general sessions for Laurens county, appellant was convicted of murder and sentenced.In proper time notice of intention to appeal was given, but, so far as appears, nothing more was done by appellant to perfect his appeal.Then, at the February term 1898, Judge Benet passed the following order: "Whereas, the defendant, John Johnson, was at the October term, 1897, of the court of general sessions for said county, convicted of murder and the sentence of death passed upon him; and whereas, the said John Johnson gave due notice of appeal to the supreme court of the state from the said sentence and judgment of the court, and the execution of the sentence was thereby suspended; and whereas, the said appeal was not perfected within the time allowed by law, but was abandoned; and whereas, the time fixed for the execution of the sentence has passed: Now, on motion of T. S. Sease, Solicitor, it is ordered that the said John Johnson be brought to the bar of the court to be resentenced."After signing this order Judge Benet resentenced the defendant.From this sentence and judgment appeal is now taken upon the following grounds: "(1) Because the presiding judge erred in resentencing the defendant while the former appeal was pending.(2) Because he erred in passing the said order against the protest of defendant's attorney."

The second exception need not be further noticed, as it presents nothing for the consideration of this court.

In reference to the first exception: This exception assumes as a fact that an appeal is pending in this court from the judgment rendered at the October term, 1897, whereas the order of Judge Benet, above quoted, distinctly adjudges that such appeal was not perfected, but was abandoned, and it is not alleged that there was any error in so finding.It is true it appears in the "case" that the attorneys for the defendant on the hearing, when the above order was moved for, "stated that the appeal had not been abandoned."But it is provided in subdivision 3, § 345,Code Civ. Proc., applicable also to appeals in criminal cases, that "when...