State v. McCoy, 19128

Decision Date23 November 1970
Docket NumberNo. 19128,19128
Citation255 S.C. 170,177 S.E.2d 601
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Troy Donald McCOY, Appellant.

Jesse M. Ray, Greenville, for appellant.

Solicitor B. O. Thomason, Jr., Greenville, for respondent.

MOSS, Chief Justice:

Troy Donald McCoy, the appellant herein, was tried before the Honorable J. B. Ness, presiding judge, and a jury, at the 1970 April Term of the Court of General Sessions for Greenville County, upon an indictment returned by the Greenville County Grand Jury, charging him with the crime of assault and battery with intent to kill. He was convicted by the jury of an assault and battery of a high and aggravated nature and appeals from such conviction and resulting sentence. It is stipulated by counsel for the State and the appellant he the evidence was sufficient to sustain such conviction.

A warrant of arrest was issued by a magistrate of Greenville County and signed by one W. L. Jackson, a detective on the Greenville Police Department. While this officer was on the stand as a witness in behalf of the State, he testified on cross-examination that the magistrate did not administer an oath to him prior to the signing of the warrant.

At appropriate stages of the trial the appellant made motions for a directed verdict of not guilty upon the following grounds:

'(1) that the undisputed evidence given by the person who signed the warrant was that he was not under oath at the time he subscribed his signature thereon; and

'(2) that further the arrest of the accused was not constitutionally permissible, and was null and void, in that it is undisputed that the warrant was not sworn to and therefore lacking in probable cause.'

These motions were refused and the failure of the presiding judge to grant such motions is made the ground of appeal to this court.

It is the position of the appellant that the original arrest warrant was illegal because such was issued by the magistrate without the proper administration of an oath to the officer who signed the affidavit for the issuance of such warrant.

The record shows that the appellant was indicted by the Greenville County Grand Jury at the 1969 December Term of the Court of General Sessions. He was tried and convicted on this indictment and not on the warrant alleged to be illegal.

The mere fact that the arrest of the appellant was unlawful, or upon a warrant not properly issued, is no bar to a prosecution on a subsequent indictment by which the court acquires jurisdiction over the person of the appellant. 56 A.L.R. 260, and 96 A.L.R. 982.

In State v. Swilling, 246 S.C. 144, 142 S.E.2d 864, it appears that the appellant was arrested without a warrant and he asserted that the trial judge should have directed a verdict of acquittal because he was arrested without a warrant and was thus denied the equal protection and due process of law. In disposing of this question, we said:

'* * * No authority is cited by appellant's counsel in support of the contention that a verdict should have been for the reasons assigned. All decisions coming to our attention are to the contrary. Even assuming that his arrest and detention without a warrant were unlawful, such would not entitle him to a directed verdict. The rule concisely stated in 5 Am.Jur. (2d) 796, Arrest, Section 116, as...

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3 cases
  • McGee v. Warden of Lieber Corr. Inst.
    • United States
    • U.S. District Court — District of South Carolina
    • July 15, 2022
    ... ...          Frankie ... Lee McGee (“Petitioner”) is a state inmate who ... filed this petition for a writ of habeas corpus pursuant to ... 28 ... Holiday, 255 S.C ... 142, 177 S.E.2d 541(1970); State v. McCoy, 255 S.C ... 160, 177 S.E.2d 601 (1970); Thompson v. State, 251 ... S.C. 593, 164 ... ...
  • Town of Mount Pleasant v. Jones, 2982.
    • United States
    • South Carolina Court of Appeals
    • April 26, 1999
    ...of an initial arrest does not bar a defendant's subsequent prosecution and conviction of the offense charged.); State v. McCoy, 255 S.C. 170, 177 S.E.2d 601 (1970) (The fact that an initial arrest may have been unlawful does not bar prosecution of the defendant based on a subsequent indictm......
  • McKnight v. Joyner, C/A No.: 8:18-1871-JFA-JDA
    • United States
    • U.S. District Court — District of South Carolina
    • September 13, 2019
    ...Judge agreed because an "improper arrest warrant is no bar to a prosecution on a subsequent indictment." (ECF No. 42). State v. McCoy, 177 S.E.2d 601, 602 (S.C. 1970). Although the Report analyzes this claim under Strickland, it found this claim to be procedurally barred because this issue ......

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