State v. Lynn

• Decision Date: 25 July 1922
• Docket Number: 10973.
• Citation: 113 S.E. 74,120 S.C. 258
• Parties: STATE v. LYNN ET AL.
• Court: South Carolina Supreme Court

113 S.E. 74

120 S.C. 258

STATE v. LYNN ET AL.

No. 10973.

Supreme Court of South Carolina

July 25, 1922

Appeal from Greenville County Court; M. F. Ansel, Judge.

Prosecution of Hugh Lynn and others for disturbing religious worship. From an order of the county judge refusing to issue the writ of certiorari to a magistrate to require the magistrate to certify to the county court the record in a criminal case tried before the magistrate, the State appeals. Order affirmed.

W. E. Bowen, Co. Sol., and H. P. Burbage, both of Greenville, for the State.

Bonham & Price and T. E. La Grone, all of Greenville, for respondents.

MARION J.

This is an appeal by the state from an order of Hon. M. F. Ansel county judge of Greenville county, refusing to issue a writ of certiorari to H. S. Lofton, magistrate, for the purpose of requiring him to certify to the county court the record in the case of State v. Hugh Lynn et al.

The defendants were charged with disturbing religious worship and were tried and convicted in the court of Magistrate Lofton. A motion by defendants for new trial was granted. No question is raised as to the jurisdiction or authority of the magistrate with respect to granting the motion for new trial. From the order granting new trial the state gave notice of intention to appeal to the county court. The magistrate having refused to file with the clerk of the county court the testimony and arrest warrant, the state's attorney filed a petition for a writ of certiorari. Thereupon a rule was issued by the county judge requiring the magistrate to show cause why the writ of certiorari should not issue. To this rule the magistrate made return, certifying that a new trial in said case had been granted upon the grounds (1) that the jury had been illegally drawn; (2) that improper evidence had been admitted at the trial; and (3) that the verdict was contrary to the evidence; and averring that, inasmuch as he had merely ordered a new trial upon questions of fact, the state had no right of appeal. The county judge refused to issue the writ prayed for upon the ground that the appeal by the state from the magistrate's order did not lie.

The sole question raised by the appeal is whether in a criminal prosecution the state has the right to appeal from an order of a magistrate granting a new trial in a case where the order is based in part upon the evidentiary facts. The only statutory provision for an appeal from magistrates' courts in criminal cases is contained in section 93 of the Criminal Code of 1912, and is as follows:

"Every person convicted before a magistrate of any offense whatever, and sentenced, may appeal from the sentence to the next term of the court of general sessions for the county. All appeals from magistrates' courts in criminal causes shall be taken and prosecuted as hereinafter prescribed."

Section 97, subd. 17, of the Code of Civil Procedure of 1912 is as follows "Any magistrate court of this state shall have power to grant a new trial in any case tried in the said courts for reasons for which new trials have usually been granted in the courts of law of this state."

That the state has no right of appeal from judgment upon verdict of acquittal in a criminal case seems to have been recognized and accepted as the law of this jurisdiction from the beginning of our judicial history. State v. Wright, 2 Tread. Const. 517; State v. Bowen, 4 McCord, 254; State v. Edwards, 2 Nott & McC. 15, 10 Am. Dec 557; State v. Gathers, 15 S.C. 370; State v Ivey, 73 S.C. 282, 53 S.E. 428. For an interesting discussion and review of the authorities upon this question, see opinion of Mr. Justice Gray in United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445. In the absence of express statutory authority, the right...