State v. McMillan

• Decision Date: 07 March 1939
• Docket Number: 14832.
• Citation: 1 S.E.2d 626,189 S.C. 444
• Parties: STATE v. McMILLAN. SAME v. HARLEY. SAME v. WIDEMAN.
• Court: South Carolina Supreme Court

1 S.E.2d 626

189 S.C. 444

STATE v. McMILLAN.

SAME v. HARLEY.

SAME v. WIDEMAN.

No. 14832.

Supreme Court of South Carolina

March 7, 1939

Searson & Searson, of Allendale, for appellants.

Randolph Murdaugh, Sol., of Hampton, for the State.

STABLER Chief Justice.

The following facts appear: At the Court of General Sessions for Allendale County, convened on October 17, 1938, indictments were presented to the grand jury charging the defendants respectively, with violations of various sections of the Code of 1932, and true bills were found thereon, to wit: "H. C. McMillan, Sheriff, one indictment for violation of Section 1510 (two counts), and one indictment for violation of Sections 1512 and 1513. Louis Harley, Probate Judge and Ex Officio Master, one indictment for violation of Section 1510 (two counts), and one indictment for violation of Section 1527 (two counts). J. A Wideman, County Treasurer, violation of section 1525 (two counts)."

Counsel for defendants thereupon moved to quash the indictments on the grounds that they were acted upon and true bills found thereon by a grand jury not legally qualified to pass upon same, for the reasons stated in the motions. From an order of the Circuit Judge refusing to quash, notice of intention to appeal was immediately given and a stay of the trial was allowed.

It is clear that the appeal, not being from a final judgment, under our decisions is premature and should be dismissed for that reason. In State v. Burbage, 51 S.C. 284, 287, 28 S.E. 937, 938, the Court said: "It is a bad practice and generally condemned, to hear appeals by piecemeal especially in criminal cases; for it is destructive of the prompt administration of justice, which is so essential to the peace of society. Besides, it leads to an unnecessary consumption of the time of this court, which could be much better employed than in considering or determining questions which may never become of any practical importance in a given case. If the defendant should be acquitted, then, of course, all the questions presented by the motion to quash the indictment and the so-called plea in abatement would lose all practical importance, and their consideration would become a work of supererogation. If, on the other hand, he should be convicted, we see no reason why all these questions could not be raised on appeal from the final judgment. But a still better reason may be given: To allow appeals to be heard from such preliminary rulings would enable a party charged with the most serious crime always to secure a continuance, when not otherwise entitled to it, by simply moving to quash the indictment, and, when his motion is overruled, give notice of appeal from such ruling, and thereby stop the trial, as was the case in the present instance. Both reason and authority require us to hold that this appeal is premature, and must therefore be dismissed." See also State v. McKettrick, 13 S.C. 439; State v. Shirer, 20 S.C. 392; State v. Mason, 54 S.C. 240, 32 S.E. 357; State v. Hughes, 56 S.C. 540, 35 S.E. 214; State v. Byars, 79 S.C....