State v. Mayfield

• Decision Date: 20 July 1959
• Docket Number: No. 17557,17557
• Citation: 109 S.E.2d 716,235 S.C. 11
• Court: South Carolina Supreme Court
• Parties: STATE, Respondent, v. Frank MAYFIELD, Appellant.

Page 716

109 S.E.2d 716

235 S.C. 11

STATE, Respondent, v. Frank MAYFIELD, Appellant.

No. 17557.

Supreme Court of South Carolina.

July 20, 1959.

Frank Mayfield, in pro per., for appellant.

James S. Verner, Asst. Atty. Gen., James R. Mann, Solicitor, Greenville, for respondent.

LEGGE, Justice.

In November, 1950, in the Court of General Sessions for Greenville County, appellant was convicted of housebreaking and larceny and sentenced by the Honorable J. Frank Eatmon, Presiding Judge, to imprisonment for eleven years. On October 22, 1957, he filed a motion for new trial on after-discovered evidence; and at the May, 1958, term, pursuant to an order of that court, he was brought from the South Carolina State Penitentiary to Greenville, where the appeared in his own behalf and was heard on his motion before the Honorable J. Robert Martin, Jr., then presiding. By his order dated August 28, 1958, Judge Martin refused the motion. Appeal is from that order.

Since the case at bar is somewhat interlaced, procedurally, with two others, reference to them is necessary.

1. In March, 1949, in the Court of General Sessions for Greenville County, the appellant Mayfield was convicted of highway robbery and larceny and sentenced by the Honorable Joseph R. Moss, Presiding Judge, to imprisonment for twelve years. We shall later refer to this as the Moss case.

2. In March, 1950, in the same court, he was sentenced by Judge Lewis to three years' imprisonment for housebreaking and larceny. We shall call this the Lewis case.

3. The case at bar, involving the sentence by Judge Eatmon (eleven years) in November, 1950, we shall call the Eatmon case.

Mayfield did not appeal in the Moss case, or in the Lewis case. He did appeal in the Eatmon case; but the appeal was not perfected and was dismissed by the Honorable Steve C. Griffith, Presiding Judge, by order dated November 10, 1954.

In April, 1958, Mayfield petitioned for a writ of habeas corpus in the Moss case and in the Lewis case. He had previously, as before stated, filed a motion in the Eatmon case for new trial on after-discovered evidence. The petitions and motion were argued before Judge Martin at the May, 1958, term; and by separate orders dated August 28, 1958, Judge Martin disposed of them as follows:

1. The petition in the Moss case was based upon two contentions, viz.: (a) that the case, which resulted in a general verdict of 'guilty', had been submitted to the jury on two counts when under the facts but one single, continuing criminal act had been committed; and (b) that the trial judge had exceeded his authority in imposing a sentence of twelve years. In his order denying it, Judge Martin held: that although the printed form of the indictment bore the title 'Indictment for Highway Robbery and Larceny', only one count was set out in the body of the indictment, to wit: a count charging highway robbery; that even if the indictment were viewed as setting forth two counts, the petitioner, who had been represented at the trial by able counsel of his own choice, should have moved to quash one count, or to require election between the two counts, prior to the verdict (Code 1952, Section 17-409), which was not done; that under any view the general verdict of guilty must be interpreted as a finding of guilt on at least the primary offense charged, that of highway robbery; and that the trial judge had not exceeded his authority in imposing a sentence of twelve years, because the indictment had charged the petitioner with robbery while armed with a pistol, a crime punishable (Code 1952, Section 16-333) 'by imprisonment at hard labor for a term not exceeding twenty-five years, in the discretion of the presiding judge.'

2. The petition in the Lewis case sought adjudication to the effect that the sentence in the Eatmon case should run concurrently with that in the Lewis case. It appeared that the sentence of three years in the Lewis case had been imposed while the petitioner was serving his sentence of twelve years in the Moss case; and the Lewis sentence had recited that it was to 'run consecutively to any other sentence heretofore imposed.' It also appeared that the eleven-year sentence in the Eatmon case had recited that it was 'to run consecutive to the sentence the defendant is now serving'. The petitioner, admitting that the twelve-year sentence and the three-year sentence ran consecutively, contended that the eleven-year sentence should run consecutively to the twelve-year sentence, but not consecutively to the three-year sentence or to the twelve-year and the three-year sentences combined, because the abovequoted language in the eleven-year sentence must be taken as referring to the twelve-year sentence, which was the only one that the petitioner was then serving. Judge Martin agreed with this contention, and ordered that the eleven-year sentence should run concurrently with the three-year sentence, and that both should together run consecutively to the twelve-year sentence imposed by Judge Moss. The effect of this order was to make the three sentences aggregate twenty-three years.

3. The motion for new trial in the Eatmon case was denied. That motion, and the order denying it, will be discussed later. Notice of appeal from that order was timely given.

In November, 1958, Mayfield filed with the Clerk of this Court a petition for a writ of certiorari in the Moss case. In that petition he suggested that there was a 'diminution of the records' and he prayed that we issue the writ, commanding that the Court of General Sessions for Greenville County certify and transmit to this court certain papers claimed by the petitioner to be of record in the said lower court, and which the petitioner described as follows: (1) Copy of the trial proceedings in the Moss case; (2) Application for writ of habeas corpus; (3) Order denying petition for the said writ; (4) Indictment; (5) Notice of Appeal; (6) Bill of Exception; (7) Record on Appeal; (8) Affidavit in support of application for leave to appeal in forma pauperis; (9) Order granting leave to appeal in forma pauperis; (10) Letter to court correcting an error in the writ of habeas corpus; (11) Solicitor's receipt for 'all papers heretofore filed in this matter'; (12) Sentence; and (13) Statement of the case.

Incorporated in the petition for certiorari just mentioned was a 'Bill of Exception and/or Grounds for Appeal', the substance of which we condense as follows: (1) That the case was submitted to the jury on two counts, whereas the facts showed the commission of but one single continuing criminal act; (2) That therefore the trial court should be required to determine how much of the sentence had been imposed for highway robbery and how much for larceny and to vacate the illegal portion of the sentence; and (3) That since the evidence showed that no weapon had been used in the commission of the crime, the trial judge was without power to impose a sentence of more than ten years.

This petition for certiorari was denied by our formal order of December 8, 1958. On March 12, 1959, Mayfield prepared, and thereafter filed with the Clerk of this Court, a request or 'motion' that this Court determine whether the denial of his petition for certiorari in the Moss case had been based upon 'adequate independent State grounds or on Federal Constitutional grounds', and whether he (to whom he refers as 'the appellant herein') 'has exhausted his State Court remedies in the above entitled cause'. Although the appeal now before us is in the Eatmon case, not the Moss case, and although, so far as we are informed, no proceeding for review of our order of December 8, 1958, is pending, we shall nevertheless state here the reasons that impelled our denial of certiorari in the case last mentioned. They were as follows:

1. Mayfield's remedy, with respect to his conviction and sentence by Judge Moss, was by appeal. He did give notice of such appeal, but the appeal was not perfected and was dismissed by Judge Griffith on November 10, 1954, as before stated. No appeal from Judge Griffith's order was taken.

2. The grounds upon which the petitioner sought the writ (i. e., the 'Bill of Exception and/or Grounds for Appeal' before mentioned) were in substance the same upon which he had sought habeas corpus in the lower court in April, 1958. They had been considered by Judge Martin and disposed of adversely to petitioner's contentions by his order of August 28, 1958, to which we have referred. No appeal was taken from that order.

3. Certification of the trial proceedings was not timely sought where requested for the first time eight years and eight months after the trial.

In November, 1958, Mayfield filed with the Clerk of this Court a petition for certiorari in the Eatmon case. In that petition he suggested that there was a 'diminution of the record', and he prayed that we issue the writ commanding that the Court of General Sessions for Greenville County certify and transmit to this court (1) a copy of the trial proceedings; (2) the indictment; (3) a copy of the order of the Court of General Sessions directing the clerk to furnish petitioner with copy of the trial transcript; (4) motion for new trial, and order thereon; (5) notice of appeal; (6) affidavits of Earl Fleming, George, Ray Hassie and R. M. Bullock in support of motion for new trial; (7) minutes of two hearings before the South Carolina Probation, Parole and Pardon Board concerning Earl Fleming in 1950; (8) copies of all indictments in Greenville County against Ray Hassie in 1950; (9) copy of 'V. L. Ashmore's threats against petitioner's life'; (10) bill of exceptions; (11) statement of the case; and (12) application for leave to proceed in forma pauperis and order thereon.

Incorporated in this petition for certiorari is a 'Bill of Exception and/or Ground for Appeal', the substance of which we condense as follows: (1) that petitioner's conviction was based upon perjured testimony; ...