State v. Levelle

• Citation: 38 S.C. 216,16 S.E. 717
• Court: United States State Supreme Court of South Carolina
• Decision Date: 28 November 1892
• Parties: STATE. v. LEVELLE.

16 S.E. 717

38 S.C. 216

STATE.

v.LEVELLE.

Supreme Court of South Carolina.

Nov. 28, 1892.

Criminal Law—Appeal—Sentence—Fixing Day.

1. The order of a trial court, fixing a new day for the execution of a death sentence, in conformity with the instructions of the supreme court on the dismissal of an appeal, is not appealable.

2. The remittitur, in such case, is to inform the court below, officially, that the preceding appeal has been dismissed, and need not contain a direction from the supreme court to assign a new day for the execution.

Appeal from general sessions circuit court of Charleston county; J. H.Hudson, Judge.

Napoleon Levelle was convicted of murder, and sentenced to death. He appealed from such sentence, and the judgment was affirmed, and a new day was set for execution. He again appealed, which appeal was dismissed, and a new day for execution was again set, and from the order appointing such day he again appealed. Appeal dismissed.

Clement S. Bissell, for appellant.

W. St. Julien Jervey, for the State.

McIver, C. J. The motion to dismiss this appeal having been heard and granted on the 25th inst., we propose now to put on record the reasons for the conclusion reached. For the purpose of obtaining a proper understanding of the case, it is necessary to make a brief statement of its history, as presented by the records of this court. It there appears that on the 24th of June, 1890, the appellant, Levelle, was convicted of murder, and sentenced to be hanged on the 5th of September, 1890; that on the 3d of July, 1890, the said Levelle, by his counsel, gave notice of appeal from the said judgment, upon certain exceptions, not necessary to be stated here; that such appeal was heard by this court on the 19th day of January, 1891, and subsequently, to wit, on the 17th of June, 1891, this court rendered judgment affirming the judgment of the circuit court, thus appealed from, and remanded the case to the circuit court "for the purpose of having a new day assigned for the execution of the sentence heretofore imposed;" that, the case being thus remanded to the circuit court solely for the purpose of having a new day assigned for the execution of the sentence previously imposed, the said court, on the 17th of November, 1891, instead of simply assigning a new day for the execution of the sentence originally imposed, undertook to resentence the appellant to be hanged on the 8th of January, 1892; that the said appellant again gave notice of appeal on the 21st of November, 1891, which last-mentioned appeal was likewise dismissed by an order of this court bearing date the 27th of April, 1892, in the following words: "On hearing the motion for dismissal of the appeal in this case, ordered that the appeal be dismissed, and that the case be remanded to the circuit court, and that the circuit judge set another day for the execution of the sentence in accordance with the judgment of this court heretofore rendered;" that, in pursuance of this order dismissing the appeal, the remittitur was sent down to the circuit court in the following words: "It is adjudged by the court that the appeal be dismissed." The case prepared for the hearing of this appeal shows that, after said remittitur had been sent down to the circuit court, the appellant was put to the bar, when the solicitor concluded a recital of the previous proceedings in the case "by formally inquiring of the convict whether he bad aught to say why a new day should not be assigned for the execution of the sentence heretofore pronounced upon him, " whereupon the circuit judge read and indorsed upon the record the following: "Napoleon Levelle, the prisoner, having been convicted in the June term in the year of our Lord one thousand eight hundred and ninety, of ...