State v. Langford, 16699

• Decision Date: 02 January 1953
• Docket Number: No. 16699,16699
• Citation: 73 S.E.2d 854,223 S.C. 20
• Court: South Carolina Supreme Court
• Parties: STATE v. LANGFORD.

Page 854

73 S.E.2d 854

223 S.C. 20

STATE v. LANGFORD.

No. 16699.

Supreme Court of South Carolina.

Jan. 2, 1953.

Robert T. Ashmore, Sol., Hubert E. Nolin, Sol., and Benjamin A. Bolt, Greenville, for appellant.

J. G. Leatherwood and C. Victor Pyle, Greenville, for respondent.

OXNER, Justice.

The question on this appeal is whether respondent may be tried and sentenced as a second offender for operating a motor vehicle while under the influence of intoxicating liquor.

Under the terms of Section 57(a) of Act No. 281 of the 1949 Acts of the General Assembly, Act June 7, 1949, 46 St. at L. 466, it is unlawful for any person who is under the influence of intoxicating liquor to drive an automobile within this State Subdivision (c) requires the Highway Department to suspend the license of any person 'who is convicted or who receives sentence upon a plea of guilty or who forfeits bail posted' for the violation of any law of this State or the ordinance of any municipality prohibiting the operation of a motor vehicle while under the influence of intoxicating liquor. Subdivision (e) states 'That the entry of any pleas of guilty and the forfeiture of any bail posted' for the violation of such law or ordinance 'shall have the sameeffect as a conviction after trial under all of the provisions of subdivision (c) of this section.' Subdivision (g) of Section 57 is in part as follows:

'Any person violating any provision of subdivision (a) of this section shall upon conviction, entry of pleas of guilty or forfeiture of bail and for the purposes of this Act any conviction, entry of plea of guilty or forfeiture of bail for the violation of any law, or ordinance of this State or any municipality of this State that prohibits any person from operating a motor vehicle while under the influence of intoxicating liquor, drugs or narcotics, shall constitute an offense for the purpose of any prosecution for any subsequent violation hereof, and such person shall be punished in accordance with the following: (1) By a fine of not less than fifty ($50.00) dollars, nor more than one hundred ($100.00) dollars; or imprisonment for not less than ten (10) days nor more than thirty (30) days, for the first offense. (2) By a fine of not less than one thousand ($1,000.00) dollars, or imprisonment for one year, or both for the second offense. (3) By a fine of not less than two thousand ($2,000.00) dollars, or imprisonment for three years, or both for the third offense. (4) By a fine of not less than three thousand ($3,000.00) dollars or imprisonment for four years, or both, for the fourth offense or any subsequent offense.'

Respondent was indicted and tried at the January, 1952 term of the Greenville County Court of General Sessions for operating a motor vehicle on April 6, 1951, while under the influence of intoxicating liquor. He was charged as a second offender. The State sought to establish a first offense by the following circumstances:

About 2:20 A.M. on May 29, 1948, respondent was arrested, without a warrant, by two police officers of the City of Greenville for operating an automobile while under the influence of liquor, in violation of Article 3, Section 48, of the City Traffic Regulations. He was taken to the police station where said charge was duly entered on the criminal docket of the municipal court. The entries made included respondent's full name, address and age, the time and place of arrest, the ordinance violated, and that the offense was committed in view of the officers. Several hours later a professional bondsman posted bond for respondent in the sum of $60. About 7:40 A.M. he was released from custody. The municipal court convened at 9:00 A.M. the same morning. Respondent failed to appear and the recorder ordered the bond forfeited, and on the same day reported the violation to the State Highway Department, which presumably suspended respondent's license to drive. No warrant of arrest was ever issued. Respondent has never sought to vacate or appeal from the judgment of forfeiture, and no effort was made by him or his bondsman to challenge the jurisdiction of the municipal court until after he was arrested as a second offender on April 6, 1951.

At the close of the State's case in the Court of General Sessions for Greenville County, respondent made a motion for a directed verdict on the ground that no warrant having over been issued for the offense alleged to have been committed on May 29, 1948, the proceedings had in the municipal court were a nullity and there had never been any lawful forfeiture of bail so as to constitute a first offense. The trial Judge sustained this contention and held 'that the forfeiture of the bond was a nullity because no jurisdiction was ever obtained of the accused, since a warrant was not issued for his arrest within a reasonable time after his detention.' Accordingly he directed a verdict of not guilty upon the charge that respondent was a second offender, from which the State has appealed.

The State contends (1) that there may be a valid forfeiture of bail within the contemplation of Section 57(g) of the 1949 Act heretofore mentioned, even though no warrant was ever issued, and (2) that the circumstances show that respondent waived any right to have a warrant issued and served upon him.

For a quarter of a century we have had legislation enhancing the punishment for a second or subsequent offense of driving a motor vehicle while under the influence of intoxicating liquor, but prior to 1947, in order to sustain a conviction for a second offense, it was necessary for the State to show that the accused had been previously convicted as a first offender. It is common knowledge that many offenders sought to evade the effect of the statute increasing the punishment for a second offense by simply posting and forfeiting bond when caught driving an automobile while intoxicated. Doubtless to stop this loophole, the General Assembly in 1947, Act May 7, 1947, 45 St. at L. 216, made the forfeiture of bail by one charged with the violation of the statute the equivalent of a conviction for the purpose of prosecution and sentence for driving while intoxicated. This policy was carried forward in the Act of 1949 which we are now called upon to construe.

Since the offense of May 29, 1948 was committed in view of the police officers, it is properly conceded that they had a right to arrest respondent without a warrant. After he was taken to the police station and the charge entered on the docket of the municipal court, that court was empowered to grant bail and to accept a cash bond in lieu of a recognizance with surety. Section 940 of the 1942 Code gives the right to 'All persons charged (and to be tried) before any magistrate' for any violation of law to deposit with the magistrate cash in lieu of entering into a recognizance. Section 952 has the effect of making Section 940 applicable to charges preferred in municipal courts. Under Section 103 of the 1944 Code of the City of Greenville, the police department is authorized to fix the amount of cash bonds to be deposited by persons charged with violation of city ordinances. Section 800 of said City Code is as follows:

'Every person charged and to be tried in the Municipal Court for any violation of the ordinances of the City shall, in lieu of entering into bond or recognizance, be entitled to deposit with the clerk of said Municipal Court a sum of money not to exceed the maximum fine which may by law be imposed upon conviction of the offense charged. Should the person so released on deposit of cash bond fail to appear in Municipal Court and answer to the charges preferred, or to be preferred against him, said deposit of cash shall be forfeited to the City of Greenville. It is to be understood, however, that failure to appear and forfeiture of bond shall not discharge the accused person from the charges against him, and the Recorder, or other presiding officer of the Municipal Court, may order the rearrest of the accused and the presentation of him to the Court for trial.'

Section 930 of the Code of 1942 provides that 'All proceedings before magistrate in criminal cases shall be commenced on information under oath, plainly and substantially setting forth the offense charged, upon which, and only which, shall a warrant of arrest issue', which has been uniformly construed as applicable to prosecutions in municipal courts. Respondent argues that under the construction placed by this Court on Section 930, there can be no valid adjudication, either by way of conviction of the accused or by forfeiture of bond, until a warrant has been issued, and that the absence of a warrant goes to the jurisdiction of the Court and cannot be waived. So that we are faced squarely with the question of whether under the circumstances of this case there can be a valid forfeiture of bail where no warrant for the arrest of the accused has ever been issued.

Proceedings before a magistrate or in a municipal court are summary. No indictment is required. Section 995 of the 1942 Code. Ordinarily the charge is preferred in a warrant upon which the accused is tried. But even though the proceedings in such courts lack many of the formalities required in a court of general sessions, jurisdiction of the offense charged and of the person of the accused is indispensable to a valid conviction. 'It has been said that jurisdiction of the subject matter of a particular case is vested in the court when the appropriate charge is filed, while jurisdiction of the person is acquired when the party charged is arrested or voluntarily appears in court and submits himself to its jurisdiction.' 22 C.J.S., Criminal Law, § 143, p. 235. While jurisdiction of the offense or subject matter may not be waived, the objection that the Court has no jurisdiction of the person of the accused may be waived, and as a general rule 'is waived when accused submits to the jurisdiction of the court by posting bail...