State v. Miller
| Decision Date | 23 January 1923 |
| Docket Number | 11114. |
| Citation | 115 S.E. 742,122 S.C. 468 |
| Parties | STATE v. MILLER. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Chester County; John S. Wilson and I. W. Bowman, Judges.
Israel Miller was convicted of violating the prohibition law and given a suspended sentence. From an order vacating the suspension and committing defendant to serve the remainder of the term, he appeals. Affirmed.
The following are the defendant's exceptions:
That the court was in error in finding that the defendant has engaged again in the violation of the liquor laws, that he had violated the conditions of his suspended sentence of "good behavior," and in sentencing the defendant to serve 10 months on the chain gang, because:
(1) The court was without jurisdiction as the rule was issued by the clerk of court, when it should have been issued by the judge and said rule was not based on any showing under oath or affirmation to the effect that the defendant had prima facie been guilty of violation of the law.
(2) That there was no evidence to sustain the rule, and it should have been discharged upon defendant's showing; the only allegation against him being that he had entered a plea of guilty of violating a city ordinance before the city recorder, and was sentenced by him therefor, when it was shown that said city recorder had vacated his office as such city recorder by accepting the office of county attorney and discharging the duties thereof subsequent to his election as city recorder.
(3) That the court was in error in holding that the violation of a city ordinance was ipso facto a violation of a sentence suspended upon good behavior.
(4) That the court was in error in not holding that the isolated violation of a statute law without circumstances tending to show that it was habitual, disconnected with any violent conduct, would not be a violation of the good behavior clause in his suspended sentence.
(5) That the defendant, being restrained of his liberty by the state and brought before the court in term time, had the right to have the charge against him, that of violating the law, submitted to a jury.
(6) That the presumption of innocence is a complete defense to rule herein, until defendant was convicted in the sessions court, or at least a competent court, and the court erred in not so holding.
W. H Newbold, of Chester, for appellant.
Samuel M. Wolfe, Atty. Gen., John M. Daniel, Asst. Atty. Gen., and J. K. Henry, Sol., of Chester, for the State.
Having served 30 days on the county chain gang, the defendant was released on April 29, 1921. On January 16, 1922, Miller was convicted in the city court of Chester of transporting whisky in violation of a city ordinance, and sentenced by R. L. Douglas, Esq., city recorder, to serve 30 days on the county chain gang or to pay a fine of $50. Having served out this sentence he was held by the superintendent of the county chain gang under the suspended sentence imposed by Judge Wilson. Miller thereupon applied for a writ of habeas corpus, and was ordered released from the custody of the superintendent of the county chain gang on March 8, 1922. He appears thereafter to have been held in the county jail until March 28, when he was served with a rule issued by the clerk of the court of general sessions, under seal of the court, requiring him to show cause why he should not be adjudged to serve the remainder of the suspended sentence imposed by Judge Wilson.
The rule was heard by Hon. I. W. Bowman, presiding judge of the court of general sessions for Chester county. Miller was represented at the hearing by his attorney, W. H. Newbold, Esq., who submitted a return, demurring "to the jurisdiction of the court" upon the grounds (1) that the alleged rule was issued by the clerk, "and not by the judge," and (2) "was not based upon any information, written statement, or affidavit showing a probable cause against the defendant"; and further alleging by way of answer (1) that the defendant had not violated the conditions of his suspended sentence, and (2) that any alleged conviction in the city court of Chester was a nullity, in that the city recorder was not a legal judicial officer, for the reason that subsequent to his election as city recorder he had been elected to and had accepted the office of county attorney, thereby automatically vacating the office of city recorder. It was admitted by defendant's counsel at the hearing that "the defendant was sentenced in city court." Judge Bowman held that it sufficiently appeared that the condition of the suspended sentence had been violated, and ordered that the suspension be vacated and "the defendant committed to the chain gang to serve for 10 months." The original sentence being for 1 year, and defendant having served only 30 days thereon, by the limitation of the period of service to 10 months, credit appears to have been given Miller for the time detained in jail. From the order of Judge Bowman defendant appeals. For the purposes of the appeal it is admitted that defendant was sentenced by R. L. Douglas, Esq., in the city court; that said R. L. Douglas then held the offices of city recorder and of county attorney, and that "the city ordinances are the same as the state quart law." Let the exceptions be reported.
The two points, embraced in the exceptions, to which the attention of this court is directed in appellant's written points and authorities are (1) that the court was without jurisdiction, in that the rule to show cause issued by the clerk of the court of general sessions was not supported by information under oath, to the effect that "defendant had prima facie been guilty of violating the law," and (2) that there was no evidence upon which the circuit judge could properly predicate a finding that defendant had violated the "good behavior" condition of his suspended sentence.
As to the first point: There can be no doubt that sound practice requires that proceedings against a party charged...
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