State v. Pope
| Decision Date | 11 February 1908 |
| Citation | 60 S.E. 234,79 S.C. 87 |
| Parties | STATE v. POPE. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Greenwood County Charles G. Dantzler, Judge.
Jim Pope was convicted of transporting contraband liquors, and appeals. Affirmed.
D. H Magill, for appellant.
R. A Cooper, for the State.
The defendant was convicted in the court of Magistrate Austin of transporting contraband liquor within the state under the following provision of the statute: "No person, except as provided in this chapter, shall bring into this state, or transport from place to place within this state by wagon, cart or other vehicle, or by any other means or mode of carriage, any liquors or liquids containing alcohol, under a penalty of one hundred dollars or imprisonment for thirty days for each offense, upon conviction thereof, as for a misdemeanor." Cr. Code 1902, § 589. After one mistrial April 30, 1906, was fixed by agreement as the day of the trial; but on that day, before the jury was sworn, at the instance of the counsel for the prosecution and over the objection of defendant, the cause was continued until May 7, 1906. When the case was called, defendant objected to the trial, alleging the magistrate to be without jurisdiction to try the cause for three reasons, which may be thus summarized: (1) Because by the continuance the defendant had been denied the constitutional right to a speedy trial. (2) The discharge by the magistrate of a jury drawn and summoned for the trial on April 30th until May 7th, the new day set for the trial, operated as an acquittal of the defendant. (3) The magistrate had no authority to continue the case, and by his attempt to do so he lost jurisdiction of it. All the objections were overruled, and the defendant was tried, convicted, and sentenced. On appeal to the circuit court the judgment of the magistrate was affirmed.
All the above-stated objections to the jurisdiction depend on the soundness of the position taken by defendant's counsel that a magistrate has no power to continue a case because the power is not expressly conferred by any statute of the state. This state is exceptional in having no statutes regulating in express terms continuance in magistrates' courts. Many of the states have statutes conferring on magistrates or justices of the peace the power to grant continuances and prescribing the conditions in which the power may be exercised. The courts of these states have generally held, if the magistrate or justice of the peace attempts to grant a continuance in a case or under conditions not included in the statute, he loses jurisdiction of the cause, and his action thereafter is of no effect. There are dicta in one or two cases, as for example Lyman-Eliel Drug Co. v. Cooke, 12 N.D. 88, 94 N.W. 1041, to the effect that in the absence of any statute on the subject a magistrate would have no power to continue a case for any cause. But no case has been cited, and we can find none which arose in a state where there was no such statute in which it is held a magistrate has no power to grant a continuance. The practice of granting continuances in magistrates' courts for good cause has obtained without question in this state as will be seen by examination of the reported cases, and there is no good legal reason for the court to bring about the confusion which would result from overturning the practice. The true view is that the power to grant continuances is a necessary incident of the power to hear and determine causes, for it cannot be conceived to be within the contemplation of the law that the state and persons accused and litigants in civil causes should be put to the useless expense and hardship of having to institute or be subject to new proceedings whenever from an unforseen accident or misfortune a fair trial...
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