State v. Mitchell
Decision Date | 05 December 1951 |
Docket Number | No. 16571,16571 |
Court | South Carolina Supreme Court |
Parties | STATE v. MITCHELL. |
John M. Schofield, Walhalla, for appellant.
Sol. Rufus Fant, Jr., Anderson, for respondent.
Appellant was convicted and sentenced in the Court of General Sessions upon indictment for driving a motor vehicle while under the influence of intoxicating liquor, and the indictment further contained the following: 'That said offense is not a first offense, the said John W. Mitchell having prior thereto committed a similar offense in said State,' etc. Motion to quash upon the ground that the allegation of prior offense was prejudicial for putting appellant's character in issue, was overruled. Exception thereto makes the sole question for decision upon appeal. It appears that a motion to strike, rather than to quash, would have been at least more appropriate, but that distinction is not relied upon by the State and will not be pursued.
The prosecution was under section 57 of Act No. 281 of 1949, 46 Stat. 466, 483, and the punishment is prescribed in subsec. (g), page 485, as follows:
See State v. Patterson, S.C., 66 S.E.2d 875, and State v. McAbee, S.C., 67 S.E.2d 417, for other examples of application of this statute.
It is patent that the Court of General Sessions was without jurisdiction of a prosecution for a first violation of the statute because of the punishment which is prescribed. State v. Castleman, 219 S.C. 136, 64 S.E.2d 250. Therefore the allegation of the indictment that the crime charged was a second offense was necessary to show the jurisdiction of the Court, and this consideration alone requires affirmance.
Moreover, as is said in 42 C.J.S., Indictments and Informations, § 145, p. 1057, 'The general rule requires an indictment or information to allege convictions of prior offenses, where such prior convictions would enhance the punishment or would affect the grade or degree of the offense charged.'
In elaboration of the quoted headnote is the following at pages 1057 and 1058: ...
To continue reading
Request your trial-
Apprendi v New Jersey
...was out of step with the general rule. See State v. Parris, 89 S. C. 140, 141, 71 S. E. 808, 809 (1911); State v. Mitchell, 220 S. C. 433, 434-436, 68 S. E. 2d 350, 351-352 (1951). 6 The gulf between the traditional approach to determining elements and that of our recent cases is manifest w......
-
State v. Scriven
...to sentence Scriven as a third offender. In reaching this conclusion, we believe Scriven's reliance on State v. Mitchell is misplaced. In Mitchell, the court stated the prevailing rule in this country at that time, which required "an indictment or information to allege convictions of prior ......
-
Tyler v. State
...indictment that the crime charged was a second or subsequent offense was necessary to show the jurisdiction of the court. State v. Mitchell, 220 S.C. 433, 68 S.E.2d 350. In the cited case, the general rule taken from 42 C.J.S. Indictments and Informations § 145b(1)(a), page 1057, is stated ......
-
State v. Ramey, 16578
...his character in issue. The identical question was settled adversely to the contention of appellant in the recent case of State v. Mitchell, 1951, S.C., 68 S.E.2d 350. Was the evidence sufficient to sustain a A patrolman of Oconee County, who had known appellant for about three years, testi......